Complainant

Respondent

Parties

Jessica Padayachee

Petit Delice Ltd

Representatives

Aisling Quilter O'Sullivan Quilter & Co

Kate-Ann O'Donoghue O'Donoghue & O'Connor Solicitors

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-00029648-001

12/07/2019

The Complainant was employed by the Respondent from 1 March 2019. The Complainant is claiming she was discriminated against in respect to her gender, family status, and race in relation to getting a job, conditions of employment and her constructive dismissal.  The last date of discrimination was 2 April 2019.   I have named the parties and confirm the Complainant is Ms. Jessica Padayachee and the Respondent is Petit Delice Ltd.  I refer to them as Complainant and Respondent in the decision.

On 6 December 2018, the Complainant applied for a job as a Pastry Chef with the Respondent via their Facebook page. The Complainant was living abroad at the time. The mother of the Respondent, responded and organised an interview with the Respondent on the 14 December 2018.

The Complainant travelled to Ireland for the interview, which went well, and the Complainant was asked to carry out a skills trial on the 17 and 19 December 2018 at the Respondent’s premises. Following this the Respondent confirmed he would hire the Complainant on the 2 January 2019. He asked the Complainant to travel to meet with his mother to get the contract.

On the 3 January 2019, the Complainant met the Respondent’s mother and signed her contract. She was due to commence her employment on 1 March 2019. There were no other booklets or conditions of employment provided by the Respondent at the time or since, aside from the contract of work.

It was on this date that the Complainant contacted Migrant.ie seeking assistance with her Work Permit application process. That agency guided her as to the documents and information necessary to complete her application.

The Agent is also the Respondent’s mother and she needed someone to stay in her house to mind her cat while she went on holidays. She asked the Complainant and her boyfriend to stay at her place instead of staying in a hotel. The Complainant obliged and stayed there for three days. Her boyfriend stayed and watched her cat until the 4 February 2019. At no stage was there any suggestion of payment, it was done so as a favour.

During the months of January and February 2019, the Complainant made progress with her application for a work permit. She received documents from the Respondent and Migrant.ie. The Complainant acknowledges that the Respondent was helpful in assisting with the requirements.

The Complainant was due to start work on the 1 March 2019 as per her contract but was requested to start work on the 25 February 2019. The Complainant confirmed to the Respondent that she did not have a PPS number and that she was advised by Migrant.ie to wait for her employment permit application to be granted before she started work. The Respondent was insistent on her starting work on the 25 February 2019 and the Complainant felt under pressure to commence work.

The Complainant had a conversation with the mother while her boyfriend was present. The complainant said it was made clear that if she did not start work immediately that they would change their minds about applying for her work permit. Further to this the mother confirmed that payment could be by cash or through her boyfriend’s bank account. As a result the Complainant was paid €450 in cash as payment for the work she carried out in February.

At no stage has the Complainant ever had a PPS number before this employment so she had to get her work permit first to get one. The Complainant alleges she did inform the Respondent and the mother on a number of occasions that she did not have a PPS number, that it was dependent on her work permit application.

The Complainant had continued to work throughout March 2019. On the 16 March 2019 the Complainant hurt her back and was unable to work on that date. She communicated this to the Respondent by text, but received no response. 

Progress had been made with the employment permit application. In order for it to be completed, it needed the signature of the Respondent employer. The Complainant organised a meeting with the Mother for the 24 March 2019. It was around this time that the Complainant realised she was pregnant.

At the meeting on the 24 March 2019 the Complainant gave the Mother the Employment Permit application form for final signature as all other steps were now completed in the permit application process. The Complainant informed the Mother that she needed her employer’s signature in order to finalise her application to submit to the Department of Business Enterprise & Innovation.

It was at this meeting that the Complainant informed the Mother that she was pregnant. The Mother stated she knew she was pregnant already before she told her.  Sha also said she was no longer sure if she wanted to go ahead with the Complainant’s work permit application and that she would let the Complainant know when she decides.

As a result of this meeting, the Complainant began to feel extremely stressed about her work situation and wanted to speak directly to the Respondent. A day after, on the 25 March 2019 the Complainant messaged the Respondent by Whatsapp to say she was not feeling well and could she speak with him. Despite the Respondent reading the message, she did not receive a response.

On the same day, the 25 March 2019, the Complainant contacted Migrant.ie to state she was “extremely stressed out and scared”.

On the 26 March 2019, the Complainant returned to work after feeling unwell the past two days due to pregnancy pains. The Mother messaged the Complainant on that date for her PPS number.

The Complainant replied promptly stating she doesn’t have a PPS number, that she can only get one once she has a work permit and that she wanted confirmation as to whether or not the Mother was still intending to proceed with the permit application, stressing the serious consequence of being deported otherwise.  The complainant presented a copy of a text message between her and the mother and in the message, the Mother did reply to confirm “Yes” to proceeding with the work permit application and advised the Complainant to “Get married”, presumably as a joke the complainant thinks.

Further to this interaction the Mother sought the Complainant’s older PPS number. The Complainant confirmed she didn’t have an older number, stating that it takes five days to get a PPS number once the application is filed. There are no further messages from the Mother.

Three days after this meeting, on the 29 March 2019, the Complainant messaged the Respondent by text and asked again for another meeting. She informed him that “I am pregnant and really not well… and in a lot of pain”. This was read by the Respondent according to the message system but was not replied to. There are no further messages from the Respondent.

In order to finalise her application, the Complainant travelled to meet with the Mother on 30 March 2019 to obtain her signature. However, at this meeting the Complainant was told that the Mother had now decided not to sign it, that they weren’t going ahead with the permit application and the Respondent would not be paying the Complainant for the month that she had worked as she didn’t have a PPS number.

The Complainant asked for a reason to be provided in writing and the Mother said she would email it to her. No email has been forthcoming. The Complainant asked the Mother if she should go to work on the next date, that being the following Monday. The Mother replied no. The Complainant asked about her outstanding pay, and the Mother’s response was “No PPS, no pay”. The complainant alleges that Mother was rude throughout the entire conversation. The Complainant left quite distressed and in tears.

That afternoon, the Complainant contacted Migrant.ie to state that her employer was not going ahead with the application.

The Complainant did not stop going to work at any point in time since she started work. She took days off that were due, as she was unwell at the start of her pregnancy. On each occasion of sickness, she informed the Respondent by text. It was in her interest to turn up to work, in order to secure her employment permit.

It is confirmed that the Complainant received €450 in cash for work completed in February however got no payment for the work she did in March.

The Complainant had raised a grievance with the Respondent and repeatedly sought a meeting but he refused or ignored this request. He did not arrange any meeting with the Complainant. As a result of informing the Respondent employer that she was pregnant, the Complainant lost her position and lost her opportunity to secure her work permit.

The Complainant submits her complaint pursuant to section 77 of the Employment Equality Act. The Complainant submits that she was the victim of discrimination in the workplace as defined by the Employment Equality Acts 1998-2015 due to her race and pregnancy. The Respondent, its servants and/or agents have allowed and/or in fact, perpetrated and participated in the said discrimination.

It is submitted that the Respondent discriminated against the Complainant in:

·         denying her the opportunity to carry on working in her employment;

·         denying her the opportunity to finalise her employment work permit application;

·         denying her money due and owing for work completed.

It is respectfully submitted that the Complainant was discriminated as a result of informing the Respondent about her pregnancy. It is well established that such pregnancy discrimination falls within the Gender ground and further that the entire period of pregnancy constitutes a special, protected period as outlined in the Court of Justice of the European Union Decisions in Webb v EMO Air Cargo (UK) Ltd, Brown v Rentokil Ltd, and Dekker v Stichting Vormingscentrum.

In the decision of McGuirk-v- Irish Garden Publisher Limited DEC-E-2007-031, the Equality Officer stated:

“It is well established ECJ jurisprudence that women who are pregnant are to be afforded special protection in employment and cannot be dismissed from the beginning of the pregnancy until the end of their maternity leave (the protected period) save in exceptional circumstances unrelated to their pregnancy. It is true that the Complainant’s dismissal took place during the protected period and it therefore falls to the Respondent to show that the termination of her employment was unconnected whatsoever with her pregnancy”.

The Complainant states that the Respondent will not be able to show any other reason which necessitated the termination of the Complainant’s employment. There is a clear absence of any formal or acknowledged performance review and/or any disciplinary process arising out of perceived failings in the Complainant’s work. The fact that the Complainant informed the Respondent that she was pregnant was the chief consideration and factor for her dismissal.

The Complainant alleges she has been discriminated against on the grounds of her being a pregnant woman and her claim is one of a discriminatory dismissal. As such, the Complainant seeks compensation for the effects of the discrimination, which have been significant and of which she will give further evidence.   In Von Colson v. Land Nordrhein-Westfalenthe Court of Justice of the European Union, held that the sanction for breaches of Community rights must be effective, proportionate and dissuasive.

The Complainant relies on the Labour Court decision in Lee t/a Peking House v Fox EEDO36 which gave guidance that an award had to have regard to:

“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”.

The Complainant acknowledges the support from the Respondent in the earlier stages of progressing her work permit application. However, this support stopped as a result of her informing the Respondent of her pregnancy. The Complainant alleges she was prevented from obtaining her employment work permit, was prevented from progressing in her job and has had monies withheld that are due and owing. She was forced out of her job as a result of her pregnancy.

The Complainant is aware that she would have to cover her own costs for the permit, but she paid each step of the application process for her work permit with the full intention of having matters finalised by her employer and obtaining it.

The Complainant at all stages carried out and completed her duties to a high standard. She has suffered enormous stress as at the manner in which the Respondent dealt with her. She is of limited means. As a result of losing her job and her work permit, the couple have had to take out a sizeable loan from the bank due to the fact that she isn’t working.

The Complainant confirmed that the discrimination grounds she is claiming against is gender; she was the only woman in the kitchen and also under family status; she was pregnant.  She is also taking a claim under the ground of race as she stated she is from the other side of the world and thought this was her dream job and got on very well and she’s different colour of skin as she was not a EU citizen and was coming from her native country. The Complainant stated she felt she wasn’t worth the trouble to get her permit based on these three grounds and was unfairly dismissed due to this.

The Respondent carries on business as a Restauranteur. The Respondent is the owner/manager of the business and employed the Complainant with a probation period of three months. The Complainant worked in the kitchen department as a Pastry Chef. Pursuant to a contract of employment, which is stated to have commenced on the 1 day of March, 2019 and which records the Claimant's actual start date as the 25 February 2019, the Complainant was contracted to work approximately 40 hours per week, on a permanent part-time basis and was paid €2,000.00 per month. However, this had to be increased to €2,800 to meet the requirements of the work permit process and this was agreed to by the Respondent.

The Respondent denies that the Complainant was dismissed at any time, and further denies that the Complainant was dismissed due to her pregnancy. The Respondent contends that the Complainant ceased work of her own volition.

It is the Respondent's case that the Complainant failed, within her probation period, to demonstrate her suitability in the role of Pastry Chef, the Complainant failed to operate independently within the role and the Complainant failed to carry out the specific requirements of that role. The Respondent states that French patisserie is an art which requires precision and knowledge of the fundamentals of pastry which the Complainant did not have. The Complainant advised at interview that she was familiar with the particular style of pastry, however, it is the Respondent's claim that when the Complainant started working, concerns were raised in relation to the extent of her experience or knowledge of pastry and to her ability to carry out her intended role. 

Furthermore, it is the Respondent's case that the Complainant was unable to take instruction in the positive manner in which it was given which led to difficulties arising between the Complainant and other kitchen staff, in particular, the Sous Chef.   

The Respondent claims that the decision to change the Complainant's role within the business was made on or about the 15 March, 2019, at least ten days, before the Respondent was on notice of the Complainant's pregnancy, which was on or about the 25 March, 2019. Discussion about this decision arose following an altercation between the Complainant and the Sous Chef, who does not have good English and was using his mobile phone to translate instructions for the Complainant when she suddenly and unexpectantly became verbally abusive to the Sous Chef in front of other staff within the kitchen area. The Complainant displayed unacceptable behaviour during this interaction, coupled with concerns in relation to her ability to do the job she was employed to do, led the Respondent to decide that she was not the proper fit for the role of Pastry Chef.

While the Respondent was not aware that the Complainant was pregnant, he had noticed that the Complainant was ill, as evidenced by her text message on the 16 March, 2019 when she did not work due to back pain, and the Respondent concluded that the Complainant was neither physically or emotionally capable of the level of work required within the Kitchen. The Respondent had discussed the situation with the Manager who agreed that there were two other roles, within the business, which may be better suited to the Complainant however he confirmed that he did not communicate this to the Complainant at any stage during her employment.

The Respondent states that the parties had a pre-existing friendship, in particular with the Respondent's mother, as the Complainant had worked in the Summer 2018 prior to returning to her native country. The Respondent therefore were happy to help her and the Respondent arranged for accommodation in his mother's home, free of charge, for the Complainant and her partner until they had settled into the locality. For the Complainant to allege that she was required to stay in the Respondent's home to mind the cat is simply disingenuous they allege. The Respondent's mother has very good relations with neighbours and friends who were quite obliging on previous occasions to care for her cat and in this instance the Respondent’s mother sent the Complainant a text on the 20 February, 2019 stating “Hi, all good, did you see the cat the neighbour said she was looking for him”. 

Furthermore, the Respondent is quite distressed at how the Respondent’s mother is being portrayed by the Complainant. At all times the Respondent's mother, was an advocate for the Complainant and a person whom she could, and did, confide in.  Via text message on the 17 February, 2019, the Respondent’s mother texted “Your thoughts is important too”, to which the Complainant replied “I know.....I am struggling” and again on the 16 March, 2019 the Complainant texted the Respondent’s mother “Hi, hope you're well, I am not doing well, please let me know when you're around again, I need someone to talk to”.

In respect to the commencement of work on Monday 25 February, 2019 the Respondent denies that the Complainant was in any way “intimidated and under threat” to commence work. As evidenced by the Complainant's text messages, there is no indication that the Complainant was intimidated or under threat by the Respondent. In the Complainant's own statement she notes that “the employer was very helpful and assisted with all requirements”. In the Complainant's text messages on the 14 February, 2019, she writes “Will be back on Monday afternoon...I hope I can come stay with you?”. Additionally, on the 17 February, 2019, the Complainant writes to the Respondent’s mother “Hi, hope you are well, I just wanted to check if you will be able to collect me from the train station tomorrow, will arrive just after 3pm....”The Complainant further states in her statement “they insisted that I had to start work on the 1 March 2018, as per contract” and “I had no work permit or PPS number, but I did work for them anyway because I felt very intimidated and under threat”, this is clearly and blatantly untrue as is evidenced from the text messages on the 20 February, 2019 at 14.23hrs, where the Claimant asks “You need me?” and the Respondent’s mother replies at 14.43hrs “Respondent says you can start when you like” of which the Claimant's reply, at 14.44hrs, is “Yay”, and at 14.45hrs, she further writes “I can't wait to start work”. 

With regard to monies owed to the Complainant, the Respondent has always acknowledged that the Complainant is owed wages and explained to the Complainant, from the outset, that all payments for work completed were paid through a payroll system managed by the Respondent’s Accountant. It is admitted that the Respondent arranged for the Complainant to be paid cash on her first week of employment as the Complainant pleaded that she was very short of funds. At all times this payment was to be processed through the payroll system, at the end of the first month's employment, which is why the Respondent could not nor would not pay any further cash payments until a PPS Number was submitted. The Respondent's standard procedure for the business is that wages are processed on a monthly basis, therefore on the 21 March 2019, the Respondent first sought the Complainant's PPS Number, address and date of birth for the purposes of processing her wages. Evidenced by the text messages, is the Respondent’s mother’s surprise as to the fact that the Complainant did not have a PPS number. Texts messages between the Respondent’s mother and the Complainant on the 21 March, 2019 state; “Hi, I hope you are well. Can you send me PPS, address and date of birth, thanks”. The Complainant replied with “Hi, hope u well, sure, DOB, address”. At no time did the Claimant take the opportunity to state that she did not have a PPS Number and ignored the request. The Respondent claims it is again disingenuous for the Complainant to state that she had verbally informed the Respondent that she did not have a PPS number.  The Respondent’s mother again asked “PPS? Thanks” whereby the Complainant stated that she “was still waiting for the PPS number”. In a further text the Respondent’s mother asked; “You didn't have a PPS last year?” and the Complainant replied “I didn't have a PPS number last year...I was just doing summer work”. The Respondent notes that these requests were before the Complainant notified him of her pregnancy and the issue of non-payment was and is due to the fact that the Complainant did not return to work after she stated she was pregnant and has not provided a PPS number to the present date.

The formal notification of the Claimant's pregnancy is disputed. In the Complainant's originating claim to the WRC, she stated “On the 24 March 2018 I informed my employer that I was pregnant at the same time that I gave him the signature pages of the Employment Permit Application Form which needed to be signed and send back to Migrant.ie....” Yet on the same date, 24 March 2019, the Complainant texted the Respondent’s mother “Hi, hope u well, please let me know when u are around, I am not well so at home all day” Yet again, on the same date, 24 March 2019, the Complainant states, in her responses by an advocate of Migrant.ie, that she spoke with the Respondent’s mother by phone and told her that she was pregnant. Furthermore, in the Complainant's originating WRC complaint, she states that on the 24 March 2019, “I was very stressed and still went to work out of fear of them not going ahead with it (“the EPA)”.  The respondent stated that the complainant claims that she gave the signature pages to the Respondent & notified him of the pregnancy on the 24 March 2019, which he refutes. The respondent allege that the complainants scenario changes in the Complainant’s texts where she states she is at home all day and then changes again to a scenario where she claims that the notification of pregnancy was to the Respondent's mother over the phone and changes again where she states she was at work on that day. 

Furthermore, the Complainant claims, in the originating complaint, that the Respondent’s mother said “would not be going ahead with the application and to speak with the Respondent”. The Respondent’s mother vehemently denies that she said such words. The Respondent’s mother was happy for the Complainant and admits that she said, within the conversation, “You will have to speak with the Respondent”.   The respondent allege that in this context it is possible that the Complainant misunderstood the situation, and very likely some of the misunderstanding was due to language between the parties, however the Complainant did not give the Respondent or his mother an opportunity to clarify the situation.

In this regard and due to prior experience, the Respondent and his mother were aware that on notification of pregnancy the employer is required to assess any risk to the safety or health of any pregnant employee, an employee who is breastfeeding or an employee who has recently given birth, as per the Safety, Health and Welfare at Work (Pregnant Employees) Regulations 2000.

Additionally, the Respondent’s mother was aware that the Respondent is the business manager and such matters are within his domain to manage, hence she stated in conversation, “you will have to talk to the Respondent”. It is noteworthy that the Respondent’s mother had also made the same comment 2 months previously, on the 16 January 2019, when she was assisting the Complainant via text message to complete the salary section of the EPA form, stating “Hi, the paper are ok for the last part n.13 I don't know you must see with the Respondent...”.On this occasion, the Complainant did not question or doubt the Respondent's intention to complete the EPA.

The Respondent allege the following day, on the 25 March 2019, the Complainant texted the Respondent stating “Hi, so sorry won't make it to come in today, please let me know when I can come in and speak with you, so sorry again”. The Respondent claims that he had not been formally notified of the pregnancy by the Complainant, verbally or otherwise, at this point. The Respondent acknowledges that he was informed by his mother of the Complainant's pregnancy and he did not reply to the Complainant's text as he was short-staffed in the business and he did not want to bother her while she was on sick leave as he knew it may have been a pregnancy related illness. 

The respondent state that on the 26 March 2019, it was the Respondent’s mother who contacted the Complainant by text message which stated “Good morning, I hope you are feeling better? Did you get PPS number? I need abselument, thanks, have a lovely day”. It is clear from the Complainant's reply that she had misunderstood the situation and enquired as to whether the EPA was proceeding. The Respondent’s mother notes that the Complainant suffers from stress on a frequent basis, and has done since she came to know her. Previous text messages and conversations can support this hence the Respondent’s mother replied by text stating “Yes is still good, get married”, attached to this was a winking emoji which demonstrated that there was no intention to disregard the application for a work permit and certainly no need for the Complainant to be distressed. The Complainant then replied “Yes we do want to....pushing for divorce in my native country”.

The respondent allege that by her own admission, the Complainant worked on the 26th, 27th and 28 March 2019 yet did not meet or request to speak with the Respondent. On the 29 March 2019, the Complainant states that she spoke with the Respondent and informed him that she was pregnant, having pains and needed to go to the doctor and that she was unable to work. Thereafter, the Complainant did not return to her employment. 

On the 30 March 2019, the Complainant stated, in her originating WRC complaint, that she met with the Respondent’s mother to get her signature to finalise her EPA. In the same originating document and in contradiction to the above, the Complainant stated that she had given the signature pages to the employer on the 24 March 2019, 6 days previously. The respondent state that such evidence cannot be relied upon. The Complainant proceeded to allege that the Respondent’s mother refused to sign the EPA and refused to pay her, which the Respondent’s mother strenuously refutes. 

The Respondent and the Complainant agreed that the costs she incurred from travelling back and forth to her native country were entirely a matter for herself and the Complainant confirmed that she would be responsible for same. In addition to this, it was the Complainant who chose to relocate to Ireland, to be with her new partner, and her trips back and forth from her native country were as much to do with applying for the employment as they were to deal with her family law matters. As evidenced from text messages the Complainant sent to the Respondent’s mother, from her native country, 11 February 2019, stating: “I am good...been very stressful....changed lawyers now...I want to come back on the 17th this Sunday....”

In the circumstances, the Respondent has obtained two references from former employees who were pregnant while employed with the Respondent. Firstly, employee A, who is available to give evidence, was employed from June 2016 to March 2019. In 2017, employee A was pregnant, and verifies that she was treated very well and received extra care during her pregnancy and continued to have a good working relationship on her return to work following her maternity leave. Secondly, employee B, who now resides in Europe, confirmed that she was employed two months after the beginning of her pregnancy in 2017. Employee B states that she had a very pleasant experience working with the Respondent during this time which is hardly the behaviour of an employer who would later discriminate against a pregnant woman. Employee B also returned to a happy work environment following her maternity leave and remained within that employment until 2018 when she voluntarily decided to return to Europe.

The Respondent is an employer with 12 employees, both women and men. If the Respondent was to have issues with employees being pregnant then he alleges that he would not survive in business. The Respondent stated that he has at all material times engaged with the Complainant regarding her concerns and states that the matters referred to herein are not discriminatory acts but grievances caused by misunderstanding and could have been resolved, without recourse to the WRC, through communication with the Respondent or alternatively by invoking the internal grievance procedure in the Contract of Employment, at paragraph 19, which states “If the employee has a grievance which she/he considers to be genuine in any respect regarding his/her employment, the employee has a right to a hearing by the employer and the employee has a right to be accompanied by a person of his/her choice at such hearing”. The Respondent believes that the fact that the Complainant did not make any communication to him after the 29 March 2019 is evidence to the fact that she did not feel obliged to as she had already made her decision not to return to work.

The Respondent’s mother gave evidence.  She stated the Complainant worked with the Respondent for 6 weeks. The Respondents had previous employees who were pregnant including an employee who was 3 months pregnant. She stated the Complainant was the only woman in the kitchen. There were other employees employed from different race backgrounds including of colour. The Respondent’s mother stated the Complainant did not say no to work permit directly.  When the Complainant came to visit her in the premises on 30 March she was told to go and see the Respondent and the reason for this was to confirm he had other jobs to offer her.  She confirmed the Complainant could not be paid until she received her PPS No. The Respondent’s mother confirmed she paid the Complainant €450 cash as she was stuck for money and she understood she needed the money.  She explained to the Complainant that the advance would go towards her three months payment. She felt they were friendly and gave her this advance without getting any papers signed. The Respondent’s mother stated she thought the Complainant had a PPS number from the year before.  She asked the Complainant to stay at her place for free while she was away in January. On 24 March 2019 the Respondent’s mother had a call with the Complainant and said there was no mention of no work.  On 31 March 2019 when the Complainant did not turn up for work, they did not contact her.  She felt this was the Complainant’s responsibility to contact them not the Respondents responsibility.

The Complainant said she had a very good relationship with the employer especially the Respondent’s mother.  The Respondent’s mother gave her the contract when she started.  The Respondent looked after her performance at work.  The Respondent’s mother stated she has a Solicitor who does the contracts for her. The Respondent’s mother stated she didn’t fully understand the work permit and PPS process. She presumed the Complainant had one since her previous employment in Ireland the previous summer. On 30 March 2019 the Respondent’s mother stated she did not realise how advanced the work permit was. She didn’t realise she had to sign the work permit for the Complainant. She advised her to talk to the Respondent.  The Respondent’s mother did not realise the Complainant couldn’t give her PPS as it was linked to the permit.  The Complainant said that was the main and key purpose of her travelling down to see her. The Respondent’s mother said she didn’t ask for her PPS No. until the second month of work.  The Complainant’s representative said she should have asked by the end of February which was end of the month. The Respondent’s mother contacted her Solicitor and Accountant to see what she should do reference to payment.  She thought the Complainant would return and they told her she couldn’t pay her without a PPS No.  She stated this is not contested i.e. that the Accountant told her not to process payment without a PPS No.

Witness of the Respondent who was a fellow employee stated she has worked in the company in 2012 for 7 years. She is happy there as an employee.  She stated she had one pregnancy when employed there in 2013 and the Respondent was supportive and she received her benefits.

The Respondent stated the Complainant said she was under pressure to start before date of 1 March 2018.  The Respondent stated that was not the case. The Respondent stated the Complainant said she wanted to learn and the trial went well but when she commenced work she spent longer time to do each task than would be normally expected. She refused to do some tasks and she couldn’t do some work correctly.

The Respondent stated the Complainant worked for 6 weeks.  She realised she wasn’t able to do the job during this time.  There were issues with her colleague as she couldn’t multi skill.  She also didn’t remember recipes she was shown the previous day.  Her colleague told her to do more work and they would argue about it.  The Respondent stated he never told her he wasn’t happy with her as he had other jobs for her.  The Respondent stated the Complainant was not suitable for the role.  He was going to offer her other work as a driver, waitress or sandwich maker but she didn’t come back to work so he couldn’t do that.  The Respondent received a text from the Complainant to meet him to which he did not reply. The Respondents stated he was too busy to reply and she knew where to find him.  The Respondent received a text from the Complainant on 29 March 2019 to confirm was pregnant.  The Respondent stated he has a lot of employees of race and has no issue reference race.  He stated he hired the Complainant in the first place which shows he had not issue with race. He stated he has a number of staff who have been pregnant before so there is no issue with reference to that.  The Respondent stated the Complainant never came to them to raise a grievance.

The Respondent stated that the Complainant, by her conduct, has irrevocably damaged the relationship of trust and confidence between the parties. It is respectfully submitted that the Complainant is in breach of her own contract of employment and the procedures therein.

Having regard to the foregoing, it is the Respondent's case that the Complainant unilaterally breached the parties' contract of employment and failed to adhere to and comply with the contractual obligations, rules, policies and procedures.

The Complainant is maintaining that her Employer discriminated against her contrary to the Employment Equality Act, 1998. I recognise that the Complainant must establish a Prima Facie case that she has been treated less favourably than another person is, has been or would be treated in a comparable situation on one of the recognised grounds of discrimination which in this instance is the race/gender and family status grounds due to her pregnancy.

Section 6(2A) of the Employment Equality Act, 1998 specifically recognises that discrimination on the gender ground shall be taken to occur where on a ground related to her pregnancy or maternity leave, a woman employee is treated, contrary to any statutory requirement, less favourably then another employee is, has been or would be treated.

The Complainant’s pregnancy meets the prima facia case requirements therefore the burden of proof shifts to the employer accordingly to prove her employment termination was not linked to any discriminatory treatment due to her pregnancy.  I will also consider the other grounds she raised also.

The Burden of Proof in the Employment Equality Act, 1998-2015 (hereinafter, “the Act”) Section 38A states:

“Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her, it is for the respondent to prove the contrary.”

Section 85A of the Act provides, 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 by the Adjudicator 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.

Section 6 (2A) of the Act is as follows

(2A) Without prejudice to the generality of subsections (1) and (2), discrimination on the gender ground shall be taken to occur where, on a ground related to her pregnancy or maternity leave, a woman employee is treated, contrary to any statutory requirement, less favourably than another employee is, has been or would be treated.

Pregnancy has been held to be a ‘special, protected period’ in order to limit the adverse effects of discriminatory treatment on women workers and their unborn children. It follows therefore that a particular onus falls on an employer to respect the pregnancy.

The Complainant stated she did not leave but she was not given the opportunity to stay and to say she left of her own accord did not stack up as it affected her work permit application and also her maternity leave benefit which she then would not be entitled to however if the employer retained her, signed her work permit application as they had agreed to do so she would have got her maternity benefit entitlement also. The parties both confirmed that no issues were raised via any form of communication by the Respondent to the Complainant at any stage in relation to her unsuitability of her role.  The employer did not contact the Complainant when she did not attend work and this supports the Complainant’s evidence.  Therefore it is clear that the Complainant’s pregnancy was the only issue to result in her work permit application not being processed and in turn her dismissal from her employment. 

Article 10 of the Pregnancy Directive Council Directive 92/85/EEC Pregnancy Directive [1992] OJ L348/1 requires an employer to set out “duly substantiated grounds in writing” where a pregnant worker is dismissed. This is the level at which the bar is set. It is not sufficient for an employer to simply say that a dismissal during pregnancy was for other unrelated reasons. Some persuasive evidence of an unrelated justification is required and in this case no paper trail or evidence was presented by the Respondent.

In the case of Assico Assembly Limited v Corcoran (EED 033/2003) in which Labour Court held:-

“Where the employee is dismissed while pregnant or on maternity leave, both legislation and case law states that the employer must show that the dismissal was on exceptional grounds not associated with her pregnancy and such grounds, in the case of dismissal, as a matter of law and in the case of discrimination as a matter of good practice should be set out in writing.”

I have not been provided any evidence which supports the Respondents claim that the Complainant’s employment was terminated on the basis of probation. This process was not documented or communicated to the employee in any way.

At the minimum there should be a paper trail showing where the employee was made aware of the performance issues and give an opportunity to improve or confirm she had failed her probation and then if no improvement occurred a termination letter should have been provided to the Complainant stating the reason for her dismissal. The Respondent has failed to provide any substantial evidence showing that the Complainant was informed of the areas she needed to improve upon, offer support, offer retraining or gave her a set timeline in which to improve or her job would be at risk.

The Respondent did not provide the Complainant with duly substantiated reasons for her dismissal in writing. The Complainant states that the termination of employment coming so soon after the Complainant informed her Manager of her pregnancy speaks for itself. The Complainant states that a conclusion of unfair dismissal and/or discriminatory dismissal can reasonably be inferred.

In a line of authorities starting with the decision in C-177/88,Dekker v Stichting Vormingcentrum voor Junge Volwassenen[1990] ECR 1-3841 the Court of Justice of the European Union (formally the ECJ) has 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. Thus, the law of the European Union recognises the reality that to treat a woman less favourably because she is pregnant is to discriminate against her because she is a woman. That can never be justified. Issues such as disruption caused to an employer’s business or costs associated with accommodating a pregnant woman in employment are, as a matter of Union law, wholly irrelevant. The issues arising for decision in this case is whether the Complainant’s dismissal was on grounds of, or related to, her pregnancy or whether it was wholly on grounds of her competence.

The Complainant has taken a complaint classified under 3 grounds for discrimination; race; family status and gender.  I find the Complainant met the prima facie case required under the legislation due to her pregnancy based on jurisprudence on pregnancy.  Therefore, the onus transferred to the Respondent in this case to prove that no infringement of the principle of equal treatment occurred and any alleged adverse treatment was in no way linked to her pregnancy.   

I find based on the evidence no thought was given to the employee protected leave entitlement based on her pregnancy in her treatment. She was suffering from morning sickness due to her pregnancy and based on the evidence she was unable to attend work fully as a result.  She was in employment for only 6 weeks in total.  Based on the evidence presented she was treated less favourably than an employee who was not pregnant and if she were not pregnant it is my finding the employer would have progressed with her work permit and retained her in employment.  There was an assertion they would have progressed with her work permit application which were at the very final stages of a 14 week process approximately and offered her alternative work due to her pregnancy and unsuitability for the role she initially was recruited for but that never materialised in reality.  

Notwithstanding this failure to engage and consult with the Complainant at the crucial time prior to her termination and ensure she was not treated unfairly due to her pregnancy is a key flaw in this case based on the employer’s legal obligation to a pregnant employee who has protected leave entitlement.  The Complainant was in a very vulnerable position with her employer due to the fact she had no work permit signed thus had no PPS number at the time of her pregnancy confirmation.  The details of the permit and PPS process were known to the employers prior to her pregnancy however they ceased their assistance with same once her pregnancy was confirmed.  She did not get her maternity benefit as a result of this treatment also.  I appreciate that the Respondent may not have intended to discriminate against the Complainant but this was the nett effect of their actions and what flowed from it.

It is this Adjudicators conclusion therefore based on all the evidence presented that this complaint is upheld and that a discriminatory dismissal occurred due to her pregnancy.

I find that the complainant was not discriminated on the grounds of race as no sufficient evidence was presented to the adjudicator to support this claim.