Complainant

Respondent

Parties

Ewa Ignatowicz

Flair Salon Services Limited T/A Xpert Professional Haircare

Representatives

Grace Kelly Hogan BL instructed by Marie Brody, Brody and Company Solicitors

Andrew Fergus BL instructed by Patrick McMahon McMahon & Company

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00028722-001

28/05/2019

The complainant commenced employment as an accounts clerk with the respondent on 24th September 2018. Her employment was terminated on 29th January 2019. She alleged that she was dismissed because of her pregnancy.

The complainant had an initial informal meeting with her line manager Ms A in October 2018 approximately four weeks after starting with the company. She claimed that there were no performance issues raised at this meeting. A further meeting was held in November at which the complainant said she was not confident in some areas and asked for further training. Having subsequently informed her line manager, Ms A, on 10th December 2018 that she was pregnant, she was told that she should keep the news secret until after Christmas and also claimed that Ms A’s attitude to her changed after this. On 20th December 2018, she was called into a meeting with both Ms A and the finance/operations manager, Ms B, where they expressed dissatisfaction with her performance. She subsequently sent an email to Ms B informing her of the pregnancy and highlighted that she had been asked to keep the news a secret by Ms A. As a result of this email, the complainant was called into another meeting with Ms A and Ms B where Ms B told her that she had been unaware of her pregnancy prior to receiving the email from her that day. The complainant took annual leave from 24th December to 9th January. On her return to work, she was presented with a warning letter. She subsequently suffered a pregnancy related illness on 22nd January and was off sick from work for three further days. She returned to work on 28th January and was dismissed from her employment on the following day, 29th January 2019.

The respondent stated that on commencing her role, the complainant was provided with training by her line manager but alleged that it soon became clear that she was not meeting expectations and was making many errors as well as having difficulty on the telephone. The complainant’s line manager had a meeting with her on 9th November where she expressed concerns about her performance. As there was no improvement, a further meeting was held on 4th December where ongoing performance difficulties her line manager had with her were discussed.

The respondent acknowledged that the complainant made her line manager aware of her pregnancy on 10th December but disputed that there was any change in attitude to her after this. It was also stated that a further meeting was held on 20th December 2018 where the complainant’s underperformance was discussed and where she was verbally informed that unless there was an improvement by the end of January 2019, her employment would be terminated. The complainant was invited to a further meeting on 11th January, the day after she returned from Christmas leave, and was given a letter outlining the company’s concerns with her performance, stating that there would be consequences if her performance did not improve over the next month. Given that that there was no improvement, the complainant was dismissed on 29th January 2019. The respondent disputed that she was discriminated against because of her pregnancy and highlighted that it employs many women who have taken maternity leave.

The issue arising for decision in this case is whether the complainant’s dismissal was on the grounds of, or related to, her pregnancy or whether it was wholly on grounds of her underperformance. In advancing the complainant’s case, Ms Hogan relied on the well-known CJEU case C-177/88, Dekker v Stichting Vormingcentrum voor Junge Volwassenen[1990] ECR 1-3841 to the effect that dismissal on grounds of pregnancy constitutes discrimination on grounds of gender which cannot be justified. The CJEU made it clear that since pregnancy is a uniquely female condition any adverse treatment of a woman on grounds of pregnancy is direct discrimination on ground of her sex.

It is the respondent’s case that the decision to dismiss the complainant was wholly on grounds of her underperformance and was unrelated to the fact that she was pregnant.

Discussion and Conclusions

It is clear from Dekker and from all of the jurisprudence in this area that the dismissal of a pregnant woman is sufficient to raise an inference of discrimination on grounds of gender.

Since the decision in Dekker, the protection afforded to pregnant women in employment has been strengthened considerably in the case law of the CJEU and in the legislative provisions of the European Union. Equality on grounds of gender is now expressly guaranteed by Article 23 of the Charter of Fundamental Rights of the European Union. Article 33.2 of that Charter also incorporates the prohibition of dismissal on grounds of pregnancy established in jurisprudence of the CJEU. It provides: -

·         To reconcile family and professional life, everyone shall have the right to protection from dismissal for a reason connected with maternity and the right to paid maternity leave and to parental leave following the birth or adoption of a child.

The Charter is now incorporated in the Treaty on the Functioning of the European Union (the Lisbon Treaty) and has the same legal standing as all preceding and current Treaties. It can thus be properly regarded as part of the primary legislation of the European Union. The jurisprudential principle that discrimination on grounds of pregnancy constitutes direct discrimination on grounds of sex is now codified in Directive 2006/54/EC on the Principle of Equal Treatment of Men and Women (the Recast Directive). This Directive provides, at Article 2. 2 (c), that any less favourable treatment of a woman related to pregnancy or maternity leave within the meaning of Directive 92/85/EEC constitutes unlawful discrimination for the purpose of that Directive. Directive 92/85/EEC (the Pregnancy Directive) provides a comprehensive legal framework in which special protection is afforded to the safety health and welfare of pregnant women in employment. Article 10 of the Directive is of particular and far reaching significance. It provides: -

·         In order to guarantee workers, within the meaning of Article 2, the exercise of their health and safety protection rights as recognised under this Article, it shall be provided that:

·         1.Member States shall take the necessary measures to prohibit the dismissal of workers, within the meaning of Article 2, during the period from the beginning of their pregnancy to the end of the maternity leave referred to in Article 8 (1), save in exceptional cases not connected with their condition which are permitted under national legislation and/or practice and, where applicable, provided that the competent authority has given its consent;

·         2.If a worker, within the meaning of Article 2, is dismissed during the period referred to in point 1, the employer must cite duly substantiated grounds for her dismissal in writing;3.Member States shall take the necessary measures to protect workers, within the meaning of Article 2, from consequences of dismissal which is unlawful by virtue of point 1.

The underlying rationale for the prohibition of dismissal on grounds of pregnancy is discernible from recital 15 of the Directive which provides: -

·         “Whereas the risk of dismissal for reasons associated with their condition may have harmful effects on the physical and mental state of pregnant workers, workers who have recently given birth or who are breastfeeding; provision should be made for such dismissal to be prohibited”

The importance of this latter provision, in deciding cases within the ambit of the Equal Treatment Directive, has been emphasised by the CJEU on a number of occasions, such as in case C-232/09Danosa v LKB Lizings SIA[2011] CMLR 45, at 60, where the Court said: -

·         “It is precisely in view of the harmful effects which the risk of dismissal may have on the physical and mental state of women who are pregnant, have recently given birth or are breastfeeding, including the particularly serious risk that pregnant women may be prompted voluntarily to terminate their pregnancy, that, pursuant to Article 10 of Directive 92/85, the EU legislature provided for special protection for women, by prohibiting dismissal during the period from the beginning of pregnancy to the end of maternity leave”

The Court then continued at par 61 of the report: -

·         “During that period, Article 10 of Directive 92/85 does not provide for any exception to, or derogation from, the prohibition on dismissing pregnant workers, save in exceptional cases not connected with their condition, provided that the employer gives substantiated grounds for the dismissal in writing”

These cases and the legislative provision of the European Union make it clear that pregnant women are to be afforded special protection from adverse treatment, and in particular from dismissal. Equally it is clear that where a pregnant woman is dismissed the employer must prove, using cogent and credible evidence, that the dismissal was in no sense whatsoever related to her pregnancy. Burden of Proof Section 85A of the Act provides for the allocation of the probative burden as between the complainant and the respondent in cases coming with its ambit. This section provides, in effect, that the complainant bears the initial burden of proving facts from which discrimination may be inferred. If those facts are established, and if they are regarded as of sufficient significance to raise an inference of discrimination, the onus passes to the respondent to show that the principle of equal treatment was not infringed in relation to the complainant. For reasons already stated above, the special protection afforded to pregnant woman against dismissal in European law requires that where a pregnant woman is dismissed the employer must bear the burden of proving that the dismissal was grounded on exceptional circumstances unrelated to pregnancy or maternity. Hence, in every case in which pregnancy related dismissal is in issue, the factual combination of the dismissal and the woman’s pregnancy must, in and of itself, place the onus of proving the absence of discrimination firmly on the respondent. The Facts In this particular case, the complainant stated that she had three informal meetings with Ms A, prior to giving notification of her pregnancy on 10th December 2018. She did not have any concerns about her position following these meetings but alleged that the respondent’s attitude to her changed following the notification of her pregnancy. Specifically, she highlighted that a meeting was held with Ms A and Ms B on 20th December, a day after she had to leave work early because of a pregnancy related illness, where dissatisfaction was expressed about her performance.  

While a discriminatory taint is not the only inference which can be drawn from that confluence of facts, it is within the range of inferences that can reasonably be drawn. In these circumstances, I am satisfied that the complainant has established facts which are of sufficient significance to place the probative burden of showing an absence of discrimination on the respondent.

Having established that the burden of proof shifted to the respondent, I am of the view that the decision to dismiss the complainant and the manner of its implementation were lacking in adherence to the disciplinary procedures, namely the various stages of the formal warnings that should be given to underperforming employees, included in the respondent’s staff handbook. Specifically, while the evidence from Ms A was compelling in relation to difficulties with the complainant’s performance prior to notification of her pregnancy, the evidence showed that the first time the complainant was made aware in writing that there could be a negative outcome from her poor performance was when she received a letter on 10th January 2019, further to the meeting of 20th December, stating that “if improvement is not seen… it will have serious consequences” and that “at the end of January we will meet again”. Despite this letter purporting to be a final written warning, it should have constituted, in my view, either an oral warning and certainly no more than a first written warning given that no formal communication was given to her prior to this and the respondent’s procedures provide that a written warning is given for “failure to improve standards of work performance” and includes “a time limit for improvement”. I also note that despite the procedures stipulating that a final written warning will be given “in writingstating that …. continued failure to improve performance will render you liable to dismissal”, the written communication the complainant was given on 10th January did not stipulate this and the complainant had her employment terminated, less than three weeks later without having received any other formal warning in the interim. I also note that, contrary to the provisions of the respondent’s disciplinary procedures, the complainant was given no opportunity to state her case and be interviewed, because Ms A and Ms B had decided to dismiss her prior to the 29th January and informed her of the outcome during the meeting on that day. In addition, I note from the respondent’s evidence that the complainant would have been dismissed when she returned to work from a pregnancy related illness on 28th January had Ms B been in work that day and was therefore only given nine working days to improve her performance, after the only formal warning she received. I further note that no substantiated grounds for the dismissal were given by the Respondent in writing, contrary to Article 10 of the Directive. On balance, I am therefore of the view that the complainant’s dismissal was tainted with discrimination and that the respondent has failed to discharge the burden of proof. Accordingly, the complainant must succeed.

Having examined the evidence and in making a decision on redress, I note the principles contained in Von Colson & Kamann v Land Nordrhein-Westfalen [1984] ECR1891, that remedies proposed when enforcing domestic legislation enacting the terms of a Directive should be “effective, proportionate and dissuasive”. I also have regard to the Labour Court decision in the matter of Lee t/a Peking House v Fox EED 036 which stated that “In measuring the appropriate quantum of compensation the Court must have regard to all the effects which flowed from the discrimination which occurred. This includes not only the financial loss suffered by the complainant arising from the discrimination but also the distress and indignity which she suffered in consequence thereof, including the effects of bringing these proceedings”.

Bearing these two aforementioned decisions in mind and recognising that the complainant obtained alternative employment very quickly, I decide that the respondent should pay her the sum of €13,000 in compensation.