EDA2017

FULL RECOMMENDATION

ADE/19/76

DETERMINATIONNO.EDA2017

SECTION 83 (1), EMPLOYMENT EQUALITY ACTS, 1998 TO 2015

PARTIES :

GINO'S ITALIAN ICE CREAM LIMITED
(REPRESENTED BY ESA CONSULTANTS)

- AND -

SIOBHAN NOLAN
(REPRESENTED BY MR. LARS ASMUSSEN B.L., INSTRUCTED BY SEAN ORMONDE, SOLICITORS)

DIVISION :

Chairman:	Mr Geraghty
Employer Member:	Ms Connolly
Worker Member:	Mr Hall

SUBJECT:

1.An Appeal of Adjudication Officer's Decision No. ADJ 00017730.

BACKGROUND:

2.The Employee appealed the Decision of the Adjudication Officer to the Labour Court on 8 October 2019. A Labour Court hearing took place on 13 October 2020. The following is the Court's Determination:-

DETERMINATION:

Ms. Nolan, ‘the Complainant’, worked for Gino’s Italian Ice Cream from March 2013 until 22 September 2018. She was in a full-time role since 2016 and was transferred on promotion that year to a different outlet.

The Complainant went on maternity leave in April 2018, which was due to conclude on 30 September 2018. The Respondent hired a Ms. Luczak to replace her while she was on maternity leave.

In August 2018, the Complainant wrote to the Respondent regarding her return to work and she expressed an interest in working at management level when she returned. She was advised that an Area Manager would contact her.

When the Complainant visited the shop a few days later, the shop manager advised her that she would be leaving the employment and that Ms. Luczak would be promoted as her replacement.

The Complainant expressed her disappointment that she had not been given an opportunity to apply, which she attributed to the fact that she was on maternity leave.

In the course of subsequent communication, the Respondent referred to the Complainant’s ‘availability’, to which she replied to indicate that she was available on a full time basis, including weekends.

The Respondent states that Ms. Luczak was appointed on the basis of her managerial experience and that they had only sought clarity regarding the Complainant’s availability because of experience with other employees returning from maternity leave who had sought different work arrangements than had applied prior to the leave.

The Complainant resigned from the employment on 22 September 2018. She lodged a complaint under the Employment Equality Acts 1998-2015, ‘the Acts’, with the Workplace Relations Commission, ‘WRC’, alleging that she had been discriminated against on grounds of gender and family status.

The Adjudication Officer did not uphold the complaint and the Complainant appealed to this Court.

In the course of the Court hearing, the Complainant’s representative withdrew the complaint on the family status ground. The case heard is an appeal of the Decision in respect of the gender ground.

Both parties acknowledged that witness evidence was not required as there was not a dispute about the essential facts of the case.

Summary of Complainant’s arguments

This case is taken under s.77 of the Acts and concerns discrimination against the Complainant contrary to s.8(1),(d) and s.8(8) of the Acts in that she was discriminated against by virtue of not being given the opportunity to compete for a promotion due to the fact that she was on maternity leave.

The Respondent acknowledges that there is no dispute about the Complainant’s excellent work performance and potential for advancement. This had been recognised already when she had been promoted to Head Gelato maker in December 2016. Her pay had risen to €12 per hour by January 2018.

On 9 August 2018, the Complainant had notified the CEO of the Respondent of her intended return from maternity leave and of her interest in a managerial role.

A few days later the Complainant visited the shop and learned that the shop manager, Ms. Cameron, was leaving. As a result, she was hopeful of being contacted and being invited to apply for the position. However, on 17 August 2018, Ms. Cameron advised her that Ms. Luczak would be replacing her. The Complainant was shocked and disappointed to be denied the opportunity to apply to make a case for her appointment to the post. She should have, and would have, been advised of the vacancy and invited to apply had she not been on maternity leave.

Subsequently, the Complainant received contradictory information via Ms. Cameron, from Mr. David Shortall, Area Manager, to the effect that a final decision on the filling of the post had not been made but that Ms. Luczak was being trained in for the post. The Complainant was not, despite her expression of interest, invited to apply.

Mr. Shortall suggested a meeting in mid September but the Complainant was concerned that the post would be filled by then and asked that it be brought forward. There was an email exchange with Mr. Shortall but the meeting never took place.

The Complainant received an email from Ms. Luczak on 20 September 2018 enquiring about her return to work and, following correspondence, Ms. Luczak confirmed her belief that she would become the shop manager.

When the Complainant spoke to Mr. Shortall the next day, he again enquired if she would be returning to work on a full time basis, despite the Complainant having clarified this to him already. He also spoke of her potential to become ‘Head Gelato Maker’, a post that she occupied already.

The Complainant believes that the comments about part-time working are a significant reflection of the Respondent’s state of mind and the inaccurate and discriminatory view that, because she had a new child, she would be unable to take on the managerial role.

In subsequent correspondence, Mr. Shortall confirmed that Ms. Luczak would become manager but added that he wanted the Complainant to train as a manager.

The Complainant contends that she should have, and would have, been given the chance to apply for the vacant post except for the fact that she was on maternity leave.

In a subsequent phone call, Ms. Cameron said that it had been assumed that the Respondent would be working part-time.

When the Complainant, mistakenly, issued an Equal Status form to the Respondent, Mr. Shortall expressed surprise and reiterated the offer of managerial training.

The Complainant was directly discriminated against. Therefore, a Comparator is not required. The Complainant was treated less favourably based on a criterion that is necessarily linked to a characteristic that is indissociable from the discriminatory ground (Case C-79/99 Schorbus).As perNtoko v. Citibank (2004) ELR 116,once the Complainant has made aprima faciecase of discrimination, (as defined inDublin Corporation v. Gibney’s EE5/1996), the burden of proof shifts to the Respondent. Reference is made also toMinaguchi v Wineport Lakeshores Restaurantand toA Technology Company v. A Worker EDA0714.

In the seminal case ofDekker v. Stichting Vormingscentru voor Jonge Volwassen (VJV-Centrum) C177/88 (1990) EUECJ R177/88,the ECJ held that discrimination on grounds of pregnancy is direct discrimination and that where a woman is treated less favourably, due to pregnancy or maternity leave, than another employee, discrimination on gender grounds shall be taken to occur.

Both EU Directive 2002/73/EC and s.26 of the Maternity Protection Acts provide for a worker’s return to work following maternity leave to her previous job and on no less favourable terms.

The Court’s attention is drawn to the cases ofByrne v. Minister for DefenceandGrainne Campbell v. Bank of Ireland Private Banking DEC 2013-046.

Other relevant examples of case law are the cases ofDevereux v. Bausch and Lomb DEC-E2005-020andA Worker v. An Insurance Company DEC E2015-022.In particular, the attention of the Court is drawn to the Court’s own observations regarding the protections from the adverse treatment of pregnant women enshrined in European law in the case ofCroc’s Hair and Beauty v. Helen Ahern ADE/16/58.

With reference to theNtokocase, the Court is asked to fix compensation at the upper end of what is permissible in the Acts at €46,080.

Summary of Respondent arguments

The Decision of the Adjudication Officer is correct in law. No new evidence is provided to contradict it.

There is no obligation on the Respondent to promote an employee. Where it does so, the promotion is based on justifiable reasons such as experience and primary skills. The Respondent has a history that shows it does not act in a discriminatory fashion.

The Respondent guaranteed the Complainant’s right to return on the same terms as she left when commencing maternity leave. She was never told that she was returning to a lesser role nor was she denied future managerial opportunities that may arise since her pregnancy.

The Respondent’s experience in recent years is that 13 staff went on maternity leave and each one requested to adjust their terms upon return to balance work and family duties and all were accommodated, so it is not denied that the Complainant was asked if she wanted to return on different terms. What is denied is her claim that she was forced to return on different terms.

With regard to case law cited by the Complainant, the Respondent disputes the applicability of the cases concerned. In the ‘Grainne Campbell’case, the Complainant was demoted upon her return from maternity leave, which is not the situation in this case.

With regard to the case ofByrne v. Minister for Defence (2017) IEHC 453,the Adjudication Officer noted significant differences between the circumstances of that case and the instant case.

The Respondent had offered to provide training for the role as manager to the Complainant. Ms. Luczak has a strong managerial background, which made her the most suitable candidate at the time. By the time that the Complainant returned from maternity leave, Ms. Luczak had completed the management training programme.

The Respondent did not promote people to manager jobs until they had undergone training. In light of the comments of the Adjudication Officer, the Respondent had now formalised the training programme that had always been in place.

The Respondent had a policy of not promoting people who had spent any significant time in a shop to management positions in that shop. Therefore, even if the Complainant had not been on maternity leave, she would not have been considered for the vacancy in question.

The Respondent acknowledges that the Complainant is an excellent worker and would welcome her return to the company to undergo the training that is necessary to develop her as a manager. Her resignation was unnecessary. She never took the opportunity that was offered to her. The Respondent was surprised at the Complainant’s resignation.

The Respondent has a grievance procedure that was never utilised by the Complainant.

The applicable law

Employment Equality Acts 1998-2015

8.— (1) In relation to—

(a) access to employment,

(b) conditions of employment,

(d) promotion or re-grading, or

(e) classification of posts,

an employer shall not discriminate against an employee or prospective employee and a provider of agency work shall not discriminate against an agency worker.

(8) Without prejudice to the generality ofsubsection (1), an employer shall be taken to discriminate against an employee in relation to promotion if, on any of the discriminatory grounds—

(a) the employer refuses or deliberately omits to offer or afford the employee access to opportunities for promotion in circumstances in which another eligible and qualified person is offered or afforded such access, or

(b) the employer does not in those circumstances offer or afford the employee access in the same way to those opportunities

The forum for seeking redress	77.— (1) A person who claims—
(a) to have been discriminated against by another in contravention of this Act,
(b) not to be receiving remuneration in accordance with an equal remuneration term,
(c) not to be receiving a benefit under an equality clause, or
(d) to have been penalised in circumstances amounting to victimisation,
*may, subject tosubsections (2)*to(8), seek redress by referring the case to the Director.**
(2) If a person claims to have been dismissed—
(a) in circumstances amounting to discrimination by another in contravention of this Act, or
(b) in circumstances amounting to victimisation,
*then, subject tosubsection (3), a claim for redress for the dismissal may be brought to the Labour Court and shall not be brought to the Director.*
*(3) If the grounds for such a claim as is referred to insubsection (1)*or(2)arise—**
(a) underPart III, or
(b) in any other circumstances (including circumstances amounting to victimisation) to which the Equal Pay Directive or the Equal Treatment Directive is relevant,
*then, subject tosubsections (4)*to(8),the person making the claim may seek redress by referring the case to the Circuit Court, instead of referring it to the Director undersubsection (1)or, as the case may be, to the Labour Court undersubsection (2)**.
(4) In this Part, in relation to a case referred under any provision of this section—
(a) “the complainant” means the person by whom it is referred, and
(b) “the respondent” means the person who is alleged to have discriminated against the complainant or, as the case may be, who is responsible for providing the remuneration to which the equal remuneration term relates or who is responsible for providing the benefit under the equality clause or who is alleged to be responsible for the victimisation.
*(5) Subject tosubsection (6)***, a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of the occurrence or, as the case may require, the most recent occurrence of the act of discrimination or victimisation to which the case relates.
(6) If on an application made by the complainant the Director, the Labour Court or, as the case may be, the Circuit Court is satisfied that exceptional circumstances prevented the complainant's case (other than a claim not to be receiving remuneration in accordance with an equal remuneration term) being referred within the time limit insubsection (5)—
(a) the Director, the Labour Court or the Circuit Court, as the case may be, may direct that, in relation to that case,**subsection (5)shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction, and**
(b) where such a direction is given, this Part shall have effect accordingly.
(7) Where the complainant's claim for redress is in respect of discrimination by—
(a) the Civil Service Commissioners in the course of such a recruitment or selection process as is referred to insection 76(5)(a),
(b) the Local Appointments Commissioners in the course of such a recruitment or selection process as is referred to insection 76(5)(b),
(c) the Minister for Defence in the course of a recruitment process for the Defence Forces, or
(d) the Commissioner of the Garda Síochána in the course of a recruitment process for the Garda Síochána,
the complainant shall in the first instance refer the claim for redress to the Commissioners concerned or, as the case may be, to the Minister for Defence or the Commissioner of the Garda Síochána.
*(8) Wheresubsection (7)applies to a claim for redress in respect of discrimination, the complainant may not refer the case undersubsection (1)*,(2)or(3)unless—**
(a) the Commissioners concerned or, as the case may be, the Minister for Defence or the Commissioner of the Garda Síochána have failed to give a decision on the claim on or before the twenty-eighth day after it was referred, or
(b) the complainant is not satisfied with the decision given on the claim,
*and in a case to whichparagraph (a)*or(b)relates, the end of the period of time which is applicable undersubsection (5)(including, where appropriate, applicable under that subsection by reference tosubsection (6)) shall be construed as—**
(i) the end of that period, or
*(ii) the end of the period of 28 days from the expiration of the period referred to inparagraph (a)or the date of the decision referred to inparagraph (b)***,
whichever last occurs.
(9) Where—
(a) a claim for redress relating to employment in the Defence Forces arises underPart IIIor in any other circumstances (including circumstances amounting to victimisation) to which the Equal Pay Directive or the Equal Treatment Directive is relevant, and
(b) the complainant is a member of the Defence Forces,
*then the claim shall, in the first instance, be referred for redress under the procedure set out insection 104***.
*(10) Wheresubsection (9)applies to a claim for redress, the complainant shall not refer a case undersubsection (1), (2)*or(3)unless—**
(a) a period of 12 months has elapsed after the referral undersection 104to which the claim relates and the procedures undersection 104(2)(a)have not been requested or have not been completed, or
(b) the complainant is not satisfied with the recommendation given undersection 104(2)(b)on the claim,
*and in a case to whichparagraph (a)*or(b)relates, the end of the period of time which is applicable undersubsection (5)(including, where appropriate, applicable under that subsection by reference tosubsection (6)) shall be construed as—**
(i) the end of that period, or
*(ii) the end of the period of 28 days from the expiration of the period referred to inparagraph (a)or the date of the recommendation referred to inparagraph (b)***,
whichever last occurs.

Deliberation and Determination

In the case ofCroc’s Hair and Beauty v. Helen Ahern, ADE/16/58, this Court set out at some length its understanding of the legal protections for pregnant women. It is not necessary to re-state here the full text of the Court’s Determination in that case. It is sufficient to summarise this by referring to the fact that the then ECJ recognised in theDekkercase, to which the Complainant’s submission has referred, that, as pregnancy is a uniquely female condition, any less favourable treatment on grounds of pregnancy constitutes direct discrimination on grounds of gender.
This principle has been copper fastened by the recognition of equality on gender grounds in the Charter of Fundamental Rights of the European Union which was, in turn, incorporated into the Lisbon Treaty. The jurisprudential principle is set out in Directive 2006/54, which provides that any less favourable treatment of a woman related to pregnancy or to maternity leave constitutes unlawful discrimination.
In drawing on these sources and on relevant case law, this Court in theCroc’scase observed that the special protection afforded to women from the commencement of their pregnancy until the end of their maternity leave is to be regarded as a fundamental right and that where a pregnant woman is treated adversely because of her condition during this period, the employer bears the burden of proving, on cogent and credible evidence, that such treatment was in no sense related to her pregnancy.
The facts of this case are that the Complainant was on maternity leave, she indicated that when she returned she would be interested in being considered for a managerial position, such a position arose to be filled but she was not considered for this. The Court is satisfied that there isprima facieevidence that the Complainant was discriminated against on grounds of gender due to the fact that she was on maternity leave at the relevant time. The burden of proof, therefore, shifts to the Respondent. It falls to the Respondent to prove that this treatment of the Complainant was not related to her pregnancy or to the fact that she was on maternity leave.
Various arguments to indicate that the Respondent’s actions were unrelated to the fact of the Complainant’s maternity leave were put forward by the Respondent.
The Respondent argued that there was a policy that no staff member could be appointed unless they had undertaken the Respondent’s training programme, that the Complainant had not done so and that Ms. Luczak had managerial experience and was available to undertake the programme before taking on the manager role. However, the Respondent accepted that, until after the WRC hearing, the management programme had not been codified in writing and that there was no documentary proof to show that that participation was a pre requisite for consideration for a manager role. In any event, it would appear that such training was predominantly, if not wholly, ‘on the job’. Even if the Respondent’s arguments are accepted at face value, it is far from clear why the Complainant could not have been accommodated upon her return from maternity leave, if indeed, participation in a training programme was required.
The Respondent argued also that there was a policy of not appointing staff in a shop to a managerial role in the same shop. However, the Respondent did concede that this was not ‘black and white’. The Respondent clarified that staff who had spent short periods working in a shop might, as in the case of Ms. Luczak, be appointed to a manager role. In this instance also, the Respondent was unable to produce documentary proof of its argument.
Other arguments, such as the Respondent’s record in dealing with staff returning from maternity leave and its record of promoting numbers of women are not, in the Court’s view, of relevance to the circumstances of the instant case.
The Court is satisfied that the Respondent has not come anywhere near meeting the burden of proving that the treatment of the Complainant was unrelated to her pregnancy. Accordingly, the Court is satisfied that the Complainant was the victim of direct discrimination on gender grounds, contrary to the Acts.
In assessing the level of compensation to be awarded, the Court has regard to the observations in the case ofCase 406/06 Paquay v. Societe d’architectes Hoet +MinneSPRL (2007) ECR 1-8511that the requirements of redress should ‘guarantee real and effective judicial protection and have a real deterrent effect on the employer’.
Taking all factors into account, the Court awards compensation to the Complainant of €20,000.
To avoid any doubt, this award is not in the nature of remuneration.

The Decision of the Adjudication Officer is overturned.

	Signed on behalf of the Labour Court

	Tom Geraghty
CO'R	______________________
27 October 2020	Deputy Chairman

NOTE

Enquiries concerning this Determination should be addressed to Clodagh O'Reilly, Court Secretary.