FULL RECOMMENDATION
SECTION 83 (1), EMPLOYMENT EQUALITY ACTS, 1998 TO 2015 PARTIES: ASTRA LEISURE AND ULTRA FRESH SERVICES LIMITED - AND - MS SVETLANA GRODZICKA (REPRESENTED BY CHRISTINA O'BYRNE B.L., INSTRUCTED BY MCGUIGAN SOLICITORS LLP) DIVISION:
SUBJECT: 1.Appeal Of Adjudication Officer Decision No. ADJ-00029417, CA-00039322-001 DETERMINATION: The complaint was stated to be on gender and family status grounds. An Adjudication Officer, ‘AO’, decided that the complaint was not well founded. The Complainant appealed to this Court. The Respondent did not attend the Court hearing of this appeal. In response to a request for clarification from the Court, the Complainant’s representative confirmed to the Court that the complaint was based on the provisions of the Acts related solely to the gender ground. Summary of Complainant arguments Prior to January 2020, the Complainant worked 40 hours per week with the Respondent for €11 per hour. In January 2020, she reduced her work hours by agreement as she worked part time in a music school. The Complainant commenced maternity leave on 2 March 2020. The Respondent terminated her employment on 11 March 2020. Furthermore, the Respondent failed to communicate this termination to the Complainant. She discovered this by chance when she accessed her online Revenue account. She texted her manager, Mr. Andy Cullen, on 1 April 2020 seeking clarification. She believed that she would be returning to work following her maternity leave. No resignation was ever submitted by her. Mr. Cullen confirmed that her employment had ceased. Subsequent to giving birth, the Complainant contacted Mr. Cullen again on 16 May 2020 and the text exchange with him provided to the Court suggests that the reason for the termination was an expectation that the company would be sold or closed due to Covid requirements. The Complainant stated that she expected to return to work the following September and was given an ambiguous response to suggest that she check back in June. The Complainant continued to believe that the cessation of her employment was temporary. The Complainant contacted Mr. Cullen in June 2020 and he stated that it was unclear when the business would re-open due to Covid restrictions. On 3 July 2020, the Complainant contacted Mr. Cullen looking for some documentation and said ‘if I am ceased without noticed by Shir I’m looking for my P45’. Mr. Cullen later clarified that a P45 was not necessary. The Complainant was shocked at the termination of her employment and suffered stress and anxiety. The Complainant was the only employee dismissed in this period. The position of the Complainant is that her employment was terminated on 3 July 2020 when she was notified regarding a P45. The Complainant submitted a complaint to the WRC in August 2020. She did so on the incorrect form but it is clear that her complaint relates to dismissal from employment contrary to the provisions of the Acts, so the appeal is validly before the Court, seeCounty Louth VEC v Equality Parcourt Ltd v A Worker EED 0211 The termination of the Complainant’s employment is discriminatory dismissal. InDekker v Stichting Vormingscentrum voor Jong Volwassenen (VJV Centrum) 1990 ECR 1-3941,the European Court of Justice held that as pregnancy is a uniquely female condition, less favourable treatment on grounds of pregnancy is direct discrimination on grounds of gender. There are strengthened protections for pregnant women in Article 23 of the Charter of Fundamental Rights for the European Union and Council Directive 2002/73/EC provides for the right of a woman to return to work following maternity leave on terms and conditions that are no less favourable to her. Directive 2006/54/EC provides that less favourable treatment related to pregnancy or maternity leave is unlawful discrimination. S. (2A) of the Acts reads 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. Further statutory requirements on employers are set out in the Maternity Protection Act 1994, in which s.26 provides that an employee shall be entitled to return from maternity leave on conditions no less favourable than those that would have applied if she had not been absent. S.85A of the Acts provide that where there is prima facie evidence of discrimination the burden of proof shifts to the Respondent. In this case, the Respondent terminated the Complainant’s employment while she was on maternity leave. Dismissal during pregnancy can only be lawful in the most exceptional circumstances, seeParcourt v A Worker EED0211andTrailer Care Holdings Ltd v Deborah Healy EDA 128. In this case, the Complainant was subject to discriminatory dismissal. This was deeply stressful for her. She was discriminated against due to pregnancy. There were no procedures followed in her dismissal. Claims that the Complainant had resigned are not borne out by any facts. There were no grounds to warrant dismissal. The Complainant was not permitted to work in September 2020, unlike her colleagues. Witness evidence Ms. Svetlana Grodzicka. Ms. Grodzicka is the Complainant. The witness said that she had agreed with Mr. Andy Cullen that she would commence maternity leave on 2 March 2020. On 1 April 2020, when she logged into her online Revenue account, the witness saw that she was listed as ‘ceased’ from her employment with the Respondent from 11 March 2020. She said that she was shocked and that she had correspondence with Mr. Cullen. She had not been notified of a dismissal. Subsequent to giving birth, on 16 May 2020 the Complainant asked Mr. Cullen in correspondence if she was ceased for good. He confirmed this but suggested that she check back with him in June. The witness said that everybody knew that the business was being sold but there were no worries about this as staff were assured that they were all being kept. The witness said that when she sought her P45 in July 2020 she understood that the termination was ‘done’. In response to questions from the Court, the witness said that Mr. Cullen had not called her after the correspondence on 1 April 2020. She said that she was confused. The witness was asked if being told that she was ‘ceased’ could not be clearer, to which she replied that she was shocked. When then asked why she had not challenged this, the witness said that she was about to give birth, the music school had closed, she had no work and this was her first experience of this kind. The witness confirmed that she had not challenged the fact that staff with less service had been retained as she was ‘pre-occupied’. The witness said that when she left on maternity leave, her relationship with Mr. Cullen had been good and he had given her €300 ‘for the baby’. The witness said that she had not given her notice and believed that she would return to work after maternity leave. The witness confirmed that all other colleagues had returned to their jobs. The applicable law Employment Equality Acts 1998-2015 (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. 82. 4) The maximum amount which may be ordered by the Director General of the Workplace Relations Commission by way of compensation undersubsection (1)(c) or(1)(f) shall be— (a) in any case where the complainant was in receipt of remuneration at the date of the reference of the case, or if it was earlier, the date of dismissal, an amount equal to the greatest of— (i) 104 times the amount of that remuneration, determined on a weekly basis, (ii) 104 times the amount, determined on a weekly basis, which the complainant would have received at that date but for the act of discrimination or victimisation concerned, or (iii) €40,000, or (b) in any other case, €13,000 Burden of proof 85A.—(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 him or her, it is for the respondent to prove the contrary. Deliberation As noted above, the Respondent did not attend the hearing of this appeal. The Respondent made no submission to the Court in advance of the hearing to set out their arguments. Therefore, all matters stated as facts by and on behalf of the Complainant are uncontested. As this is ade novoappeal, arguments made previously by the Respondent are irrelevant to the Court’s deliberation, in circumstances where any such arguments have not been put to this Court for consideration. The Complainant contends that she was dismissed by the Respondent during her maternity leave. The Court has not been given any argument that contests this contention. Therefore, it has to be taken as a fact by the Court. Likewise, it is argued for the Complainant that she, alone, of the Respondent’s employees was dismissed in the period in question. No evidence was given to the Court to suggest that any of the Complainant’s colleagues were pregnant or on maternity leave at that time. This gives rise to aprima faciepresumption that the Complainant was treated less favourably due to her pregnancy. The burden to prove otherwise, therefore, rests with the Respondent. 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 the case ofDekker v. Stichting Vormingscentru voor Jonge Volwassen (VJV-Centrum) C177/88 (1990) EUECJ R177/88,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 failure of the Respondent to put any arguments to the Court in order to discharge this burden leads the Court, inevitably, to conclude that the Respondent discriminated against the Complainant on the ground of gender, in accordance with S. 2A of the Acts. For reasons set out in this Court’s Determinations in two parallel cases involving the same parties, the Court is clear that the Complainant’s employment was terminated on 11 March 2020 on which date the Respondent notified Revenue that the Complainant’s employment had ceased. The Court has the right in accordance with s. 82(1) of the Acts to determine that the appropriate remedy in such cases is re-instatement or re-engagement. However, the Respondent company is understood to have ceased trading and, in any event, in consideration of the facts of the case, the Court is of the view that compensation is the appropriate remedy. Prior to taking maternity leave, the Complainant was working part-time for €11 per hour. The hours varied somewhat week to week but, in the course of the appeal hearing, the Complainant’s representative advised the Court that the Complainant worked an average of 15 hours per week. At €11 per hour, that is an average weekly wage of €165. This is the weekly figure on which compensation must be based. 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’. The dismissal of a woman due to pregnancy or maternity leave is a breach of a fundamental right guaranteed directly by an EU Directive. As such, it must be regarded as among the most egregious breaches of employment law. No argument has been put to the Court that the appropriate compensation for the Complainant in the instant case should be anything less than the maximum allowable under s. 82(4) of the Acts of 104 weeks’ pay. Accordingly, the Court determines that the Respondent should pay compensation to the Complainant of 104 weeks’ pay, being an amount of €17,160. Determination The Decision of the Adjudication Officer is overturned.
NOTE Enquiries concerning this Determination should be addressed to Orla Collender, Court Secretary. |
