EDA2018

1.An appeal of an Adjudication Officer's Decision No. ADJ-00015030

BACKGROUND:

2.The Employer appealed the Decision of the Adjudication Officer to the Labour Court on 10 May 2019. A Labour Court hearing took place in a virtual Courtroom on 29 September 2020. The following is the Court's Determination:-



DETERMINATION:

This matter comes before the Court as an appeal by Ciara Halpin t/a Jo Jingles Cork (the Respondent) against the decision of an Adjudication Officer given under the Employment Equality Acts 1998 – 2015 (the Acts) in a complaint made by Heather O’Sullivan (the Complainant) that she had been discriminated against on grounds of her gender. The Complainant alleged that she was discriminatorily dismissed owing to her pregnancy on the grounds of gender. The Adjudication Officer held that the Respondent had discriminatorily dismissed the Complainant on the ground of gender. He awarded the Complainant the sum of €15,000 in compensation.

Background

The Complainant commenced employment with the company on 13^thApril 2015 as a class teacher working across a number of locations. She worked 11 hours each week on average and received a rate of pay of €20.00 per hour. Her employment terminated on 8^thJanuary 2018.

Summary position of the Respondent (Appellant)

The Respondent denied that the Complainant had been dismissed due to her pregnancy and submitted that she was dismissed on foot of a failure of the business.

She submitted that the Complainant informed her in October 2017 that she was pregnant. The Respondent did not think that any risk attached to the Complainant’s pregnancy at work. The Respondent had run classes herself while she was pregnant as had two other teachers and no issue had arisen. In November 2017, the Complainant informed her that the stereo she had been given as a docking station was too heavy to carry while she was pregnant. The Respondent swapped the stereo for a lighter one.

The Respondent contacted the Complainant four days before the term was due to start in January 2018. At that point fees had been taken from customers for the Douglas location which was the most profitable element of the business and was the location which supported the operation in all other locations. The Complainant, who ran the classes located in Douglas, informed the Respondent that she would be unable to run the Douglas class in the coming term as a result of health and safety concerns in that location related her pregnancy. The Respondent decided at that point to close her business entirely as it would have had to close for five weeks to allow a health and safety risk assessment to be carried out, would have been running at a loss and would no longer have been viable.

The Complainant had at no point previously raised concerns as regards her pregnancy at work. In January 2018 the Complainant advised the Respondent of a pregnancy related health incident which had occurred on 6^thDecember 2017. She requested the Respondent to carry out a risk assessment of the Douglas venue. The Respondent, in recognition of the fact that the Complainant worked across a range of venues decided that a risk assessment across all venues would be appropriate. She decided that, in order to conduct such risk assessments, she would have to cancel all classes for the first half-term of five weeks. That cancellation of classes was commercially unsustainable and the business closed as result of that set of circumstances. The failure related to the practical reality of the unsustainability of a five week closure and the return of fees to customers which flowed from that. The termination of the Complainant’s employment arose from the redundancy of her position and not as a discrimination against the Complainant on grounds of her gender arising from her pregnancy.

The Complainant received all statutory redundancy entitlements on the termination of her employment.

Summary of the position of the Complainant

The Complainant submitted that the Appellant discriminated against her on the gender ground. She submitted that the Respondent reacted to her request for a risk assessment of her workplace in light of her pregnancy by closing the business and terminating her employment. This, she submitted, amounted to a discriminatory dismissal of her on grounds of her pregnancy.

She submitted that she had informed her employer of her pregnancy in October 2017. She came to believe that one of her work venues posed a health and safety risk and she informed her employer of that view on 2^ndJanuary 2018. On 4^thJanuary 2018 the employer advised her that all of her work would be cancelled for five weeks.

On 4^thJanuary also the Complainant highlighted to the employer that the employer had particular responsibilities to pregnant employees if there is a health and safety hazard in the workplace and suggested that she, the Complainant, be put on Health and Safety leave in accordance with Section 18 of the Maternity Protection Act, 1994. On 5th January 2018 the Respondent advised the Complainant that she was to be made redundant.

The Complainant brought the Court’s attention to its decision inAssico Assembly Limited v Corcoran [EED033/2003]wherein this Court stated as follows:

• “Where the employee is dismissed while pregnant or on maternity leave, both legislation and case law state 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”.

The Complainant submitted that a range of options were available to the Respondent to accommodate the safety issues arising in the work venue, These included arranging a replacement teacher while the risk assessment was carried out or temporarily moving the work venue to another location. She submitted that the Respondent did not give consideration to any alternative course of action but proceeded immediately to close the business and terminate the Complainant’s employment upon being advised of a Health and Safety concern related to the Complainant’s pregnancy.

The Complainant submitted that she was discriminatorily dismissed in a manner which amounted to victimisation of her within the meaning of the Act.

Discussion and conclusions

In a line of authorities starting with the decision inC-177/88, Dekker v Stichting Vormingcentrum voor Junge Volwassenen [1990] ECR 1-3841the Court of Justice of the European Union (formerly 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.

Directive 92/85/EEC (the Pregnancy Directive) of the EU 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 issue arising for decision in this case is whether the Complainant’s dismissal was on grounds of, or related to, her pregnancy or whether other objective circumstances wholly unrelated to her pregnancy led to her dismissal. Having regard to the fact that the Complainant was pregnant at the date of her dismissal, the burden of proving that the dismissal was not related to her pregnancy rests upon the Respondent.

It is the Respondents’ case that the decision to dismiss the Complainant was made on grounds of the unsustainability of the business and resulting redundancy of her position. The unsustainability of the business is contended to have arisen from a requirement for a temporary closure necessitated by the need for a safety risk assessment of the premises where the Complainant worked. The requirement for that safety risk assessment arose from the pregnancy of the Complainant and, whereas the Complainant’s pregnancy was a known reality since October 2017, the challenge of assessing whether the workplace was safe for a pregnant worker was not considered actively by the Respondent until January 2018.

The Complainant has submitted that alternatives were available to the Respondent in terms of accessing an alternative work location on a temporary basis or of placing the Complainant on Health and Safety leave while recruiting a replacement worker. The Court does not consider that the Respondent has offered convincing reasons why alternatives to the closure of the business were not considered in January 2018. Neither has the Respondent given the Court an understanding as to why a health and safety assessment of the workplace required a five-week closure of the business. Finally, the Respondent has not provided the Court with evidence of any financial imperative creating a threat to the business prior to the Complainant raising health and safety issues related to her pregnancy.

The burden of proving that the termination of the Complainant was wholly unrelated to the fact of her pregnancy rests upon the Respondent. The Court has concluded that the Respondent has not discharged that burden. In those circumstances the Court concludes that the termination of the employment of the Complainant amounted to discrimination on the grounds of her gender arising from her pregnancy.

Determination

For all of the reasons set out herein the Court has concluded that the termination of the Complainant’s employment was tainted with discrimination. The Court, having regard to the effects on the Complainant of the act of discrimination which was the termination of her employment, measures the quantum of compensation which is appropriate in the circumstances at €15,000. The Respondent is ordered to pay the Complainant compensation in that amount.

The decision of the Adjudication Officer is affirmed.

The Court so Determines.

	Signed on behalf of the Labour Court
	Kevin Foley
13 November 2020	______________________
CC	Chairman