Complainant

Respondent

Parties

Ewelina Rauch

La Creme Recruitment

Representatives

Self-represented

Helen Quinn IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 79 of the Employment Equality Acts 1998 - 2015

CA-00035276-001

17/03/2020

The Complainant was on the register with the Respondent as an Agency Worker. She contends that she was discriminated against on grounds of gender and family status, as the Respondent, having agreed to put her forward for a 23-month contract then rescinded this when she told them she was pregnant.

The Complainant stated that she was registered with the Respondent and received 3 weeks work in late December 2019 / early January 2020. On 7th January 2020 she was told there was a 23-month contract coming up if she was interested in letting her name go forward. The Complainant was very interested and arranged to give the Recruiter an updated CV, which she forwarded on 9th January 2020. On 14th January 2020 the Complainant told the Recruiter that she was pregnant.  On that date, the Recruiter sent an email to the Complainant responding to queries about pay and stated: “In regard to the role – it is a 23 months contract. We can put you forward for shorter roles up until May.”  The Complainant noted that in her original contract from the Agency they stated expressly that the contract and engagement thereof was strictly in accordance with Irish Laws. The Complainant stated that this obviously proved not to be the case, as the Respondent clearly acted in breach of Ireland Employment Equality laws in discriminating against her when she was pregnant. The Complainant was extremely upset by the treatment and lost out on maternity benefit and felt that she was treated as a lesser being because of her pregnancy.

The Respondent made written and oral submissions summarised as follows:

The Complainant was added to the Respondent’s candidate register for upcoming assignments in December 2019. This means the candidate is willing and available to take on suitable assignments in line with their skillset and subject to the Client’s agreement. The Complainant worked from 12th December 2019 to 6th January 2020 as an Agency Worker in a full-time position in a hospital. From 7th January 2020 the Complainant was once more a live candidate.   In or around that time, in conversation with the recruiter, the Complainant was informed there was a 23-month role coming up. Between 7th January 2020 and 13th January 2020 there was a further conversation and the Complainant informed the Recruiter that she was pregnant.   The Recruiter congratulated her and mentioned that the role would involve 6 – 9 months training.   Following this conversation, the Recruiter reviewed the job description for the role and found that the Complainant did not meet 3 of the 4 competencies / skills and experience, for example she hadn’t worked in a call centre. On this basis it was decided not to put her forward for the position.   Another role came up for which the Recruiter wished to put the Complainant forward, which was to be from 17th February to 31st March 2020 with the possibility that the assignment would be for a longer period. But this role was put on hold by the client and could not be offered to the Complainant. The Respondent’s position is that they did not discriminate against the Complainant when they did not put her forward for the 23-month role. It was on the basis of suitability in relation to skills and experience. The Respondent provided a chart of some 8 assignments of candidates they achieved assignments during their pregnancies.

Burden of proof / prima facie

Section 85A of the Employment Equality Acts 1998-2011 sets out the burden of proof as follows:

“(1) Where in any proceedings facts are established by or on behalf of a Complainant from which it may be presumed that there has been discrimination in relation to her or her, it is for the Respondent to prove the contrary.”

Put simply, the onus in the first instance lies with the Complainant to establish the primary facts from which it may be inferred that discrimination has occurred. If these facts are established substantiated by evidence, the burden of proof then shifts to the Respondent to prove that discrimination did not occur.

The extent of evidential burden has been established by the Labour Court in The Southern Health Board v Dr Teresa Mitchell DEE 011 where the Court found that the Complainant must:

“establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.             It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment”.

The formulation of the test by the Labour Court in The Southern Health Board v Dr Teresa Mitchell DEE 011 was described by the Court in HSE North Eastern Area v Sheridan EDA0820 as involving a three-step process of analysis:

First, the Complainant must prove the primary facts upon which he or she relies in alleging discrimination.

Second, the Court or Tribunal (or in this case, Adjudicator) must evaluate these facts and satisfy itself that they are of sufficient significance in the context of the case as a whole to raise a presumption of discrimination.

Third, if the Complainant fails at stage 1 or 2, he or she cannot succeed. However, if the Complainant succeeds at stages 1 and 2, the presumption of discrimination comes into play and the onus shifts to the Respondent to prove, on the balance of probabilities, that there is no discrimination.

In this instant case, it is common case that the Complainant was pregnant and informed the Respondent of the fact in or around 14th January 2020. The law is quite clear where pregnancy is concerned. I find that the fact that the Complainant notified the Respondent that she was pregnant constitutes a prima facie case. This means the burden of proof shifts to the Respondent to prove that the alleged discriminatory act was not related in any way to the pregnancy.

3.Evidence

It is common case that the chronology of events was as follows:                                              07/01/2020 - The Complainant was contacted by the Respondent and informed there was a 23-month role coming up.                                                                                                                               09/01/2020 – The Complainant sent her updated CV to the Respondent.                                       14/01/2020 – The Complainant informed the Recruiter that she was pregnant. On same date the Recruiter emailed the Complainant stating inter alia “In regard to the role – it is a 23 months contract. We can put you forward for shorter roles up until May.”  

I note the evidence of the Respondent that a review of the Complainant’s CV resulted in a decision by the Respondent that the Complainant was not suitable for the role for which they had intended putting her CV forward. I do not accept that this decision, which was communicated to her on the very same day that the Complainant informed the Recruiter of her pregnancy, was made in complete separation from the fact of the Complainant’s pregnancy. I therefore do not accept that the decision was not related in any way to the pregnancy.

It is well established in law that pregnancy cannot be used to disadvantage women and I find that the actions of the Respondent in this case is a clear example of discrimination.  

I find therefore that in accordance with Section 6 (2A), the Complainant was, on a ground related toher pregnancy or maternity leave, treated less favourably and I uphold her complaint.

Discrimination on grounds of gender. Pregnancy.