ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00051855

Parties:

Complaints:

Date of Adjudication Hearing:  10/09/2024

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 79 of theEmployment Equality Acts, 1998 - 2015, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

The matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and S.I. 359/2020, which designated the WRC as a body empowered to hold remote hearings.

The parties were afforded the opportunity to examine and cross examine each other’s evidence.  All evidence was given by oath or on affirmation.

Background:

The Complainant was employed by the Respondent from 12 December 2022.  Her employment was terminated on 29 February 2024.  She contends that she was discriminatorily dismissed on grounds of gender and pregnancy.

Summary of Complainant’s Case:

The Complainant was employed by the Respondent as a Category Sourcing Consultant from the 12th of December, 2022 until the 29th of February 2024. The Claimant went on Maternity leave on 5th February 2024.

At the time of dismissal her gross salary was €5200.00 monthly for a 40 hour working week.

Following her dismissal the Complainant has been on Maternity leave and has not yet obtained alternative employment.

The Complainant claims compensation for discrimination on the grounds of gender and family status in her conditions of employment.

The Claimant was employed by way of a full-time permanent contract from the 12th of December, 2022 until her dismissal on the 29th of February 2024, while on Maternity Leave. For the avoidance of all doubt, there was never any mention of her role being fixed-term in nature. Her original contract does not set out a final date.

In July 2023, the Claimant notified the Respondent that she was pregnant. She was informed ten days later that she would be receiving an addendum to her contract of employment, which mentioned an extension of duties from the end of December 2023 until the end of February 2024 (the very same month the Claimant was due to go on maternity leave).

The Claimant refused to sign this addendum. As December 2023 approached, the Claimant was informed that should she fail to sign, she would not be paid for January nor February 2024.

The Respondent repeatedly telephoned and emailed the Claimant about signing the said addendum. Eventually, under the duress of the threat of loss of income immediately prior to the birth of her child, the Claimant was forced to sign the addendum.

The Claimant requested any correspondence to be conducted in writing due to the Respondents behaviour since she announced her pregnancy, and to allow her to better understand the situation, as a fluent Portuguese speaker with English as her second language.

The Respondent refused, and her employment was terminated in February 2024 while on Maternity Leave.

SUMMARY OF LAW THAT THE COMPLAINANT WILL RELY ON

Section 6(1) of the Act provides, in relevant part, as follows: -

“For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where—

(a)a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the ‘discriminatory grounds’) which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(b) a person who is associated with another person—

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.

The case of Rotunda Hospital v Gleeson [DDE003/2000] determined the bar of prima facie case to be:

"Evidence which in the absence of any contradictory evidence by the employer would lead any reasonable person to conclude that discrimination has probably occurred."

The Claimant must discharge the burden of proof by showing that the difference in treatment is due to discrimination on one of the discriminatory grounds. Once the Claimant has made a prima facie case the burden of proof shifts to the Respondent. The rule is required pursuant to EU law and its rationale was explained in Ntoko v Citibank [2004] ELR 116:

“This approach is based on the empiricism that a person who discriminates unlawfully will rarely do so overtly and will not leave evidence of the discrimination within the Appellant’s power of procurement. Hence, the normal rules of evidence must be adapted in such cases so as to avoid the protection of anti-discrimination laws being rendered nugatory by obliging Appellants to prove something which is beyond their reach and which may only be in the respondent’s capacity of proof.”

Gender

Per the case of A Worker v Mid Western Health Board [1996] ELR 1 the Labour Court confirmed;

(i) To establish discrimination on gender grounds, a complainant must show both less favourable treatment and that such treatment arises from the sex of the complainant;  

In the case of Dekkar v. Stichting voor Jong Volwassenen (VJV-Centrum) [1990] ECR 1-3941, the European Court of Justice held that since pregnancy is a uniquely female condition, less favourable treatment on the grounds of pregnancy constitutes discrimination on the grounds of gender.

Section 6(2A) of the 1998 Act also provides protection for pregnant workers against less favourable treatment in the workplace. It provides:

“2(A) 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.”

The fact that the Claimant as the only pregnant employee was subjected to different and less favourable treatment in her dealings with the Respondent, in her inability to return to work in the terms she had left, the timing of the contract addendum in relation to her pregnancy announcement, and the Respondents sustained, ongoing and threatening direction to sign the said addendum, raises an inference that the Claimant's pregnancy caused her to be treated less favourably than another employee would have been treated. In the instant matter, Section 6(2A) of the 1998 Act, has been breached by the Respondent and the Claimant remains entitled to compensation for that breach.

It is evident that due to;

1. The Respondent’s marked change in tone and attitude to the Claimant following her pregnancy announcement;
2. The timing of the contract addendum which sought to limit the term of the Claimants contract;
3. The ongoing pressure exerted on the Claimant to sign the addendum;
4. The failure to conduct any risk assessment in relation to the Claimant;
5. The failure to allow the Claimant to return to the role she held immediately prior to her period of protected leave;

the Claimant has suffered adverse treatment and it is now for the Respondent to prove that this adverse treatment did not arise as a result of her pregnancy.

Compensation

It is argued that in accordance with the case of Von Colson & Kamann v Land Nordrhein- Westfalen [1984] ECR 1891, there is a requirement that the sanction be "effective, dissuasive and proportionate."

Per the case of Dr Jacqueline Elliott v Flexiteam Ltd. ADJ-00045346; "The other factor that must be taken into account in deciding the quantum of an award is the embarrassing and distressful situation the Complainant was put in".

The Claimant respectfully requests that her complaints be held to be well-founded. She requests that an award be made in her favour.

The Complainant gave evidence by affirmation.  She stated that she did not have any reason to doubt she was a permanent employee until after she notified the Respondent of her pregnancy.  She denied there was a mutual agreement to change the end date of her contract.  She was very upset at the Respondent’s attempts to get her to sign an amended contract and under legal advice she refused to sign it.  However as November and December approached she was put under so much pressure that she needed her salary, and she understood she would not be paid for January and February if she did not sign. She was extremely upset by the situation and had to seek medical help, through therapy and medication. 

Summary of Respondent’s Case:

The Respondent did not provide a written submission. 

The legal representative (Ms B) of the Respondent gave evidence on affirmation.   She stated that the Complainant’s contract did not have an end date and this was an error.  An addendum to contracts was sent to all staff employed in relation to work engaged with contractors.  In this case the client did not wish to renew the Complainant’s contract so her contract came to an end in February 2024.  It was the client’s decision.  There was a search for similar roles for the Complainant.  The Complainant was employed in December 2022.   In July 2023 an addendum to contracts was drafted which amended the term of the Complainant’s contract to end on 29/02/2024.   It was explained by email to the Complainant that this addendum was to match the end date of the client’s contract.  

Findings and Conclusions:

The matters for investigation in this case are did the Respondent discriminate against the Complainant on grounds of gender and was she discriminatorily dismissed because of her pregnancy.

The applicable law

Section 6(1) of the Employment Equality Acts 1998 and 2011 provides:

For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances, discrimination shall be taken to occur where—

• (a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the ‘‘discriminatory grounds’’)..

Section 6 (2) provides:

As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are

• (a) that one is a woman and the other is a man (in this Act referred to as “the gender ground”…

Section 6 (2A) provides:

“2(A) 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.”

The burden of proof

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

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

The facts established on behalf of the Complainant are as follows:

The Complainant was issued with a contract in November 2022, to commence employment with the Respondent on 12 December 2022.  The contract did not specify an end date.   The Complainant advised the management in the Respondent Company of her pregnancy on 10 July 2023.  Some emails were exchanged, in which the Complainant advised her due date and estimation of start of maternity leave as being during February 2024.  She estimated she was due to return to work in July 2024.   On 20 July 2023, the Respondent issued the Complainant with an addendum to her contract stating that it would come to an end on 29 February 2024.

Based on the facts above, and especially that the Respondent moved to change the Complainant’s contract of employment some 10 days following her announcement of her pregnancy, I find that the Complainant has established a prima facie case from which it may be presumed that there has been discrimination in relation to her.   It is for the Respondent to prove the contrary.

The Respondent did not provide a written submission, so the rebuttal relied upon is from the oral evidence given by affirmation.   No documents were provided to support the evidence that the Respondent contract with the client was being terminated at the same time as the Complainant was due to go on maternity leave.  No documents were supplied to prove the Respondent’s point that they had regularly been seeking alternative roles for the Complainant at the time.

The Respondent’s evidence was that the omission of an end date in the Complainant’s contract of employment was an error.  To unilaterally change an employee’s terms in her contract is a serious matter.  To unilaterally change the end date of the employee’s contract in this instant case was particularly egregious especially when she had notified the Respondent of her pregnancy.  I note and accept the Complainant’s evidence that she was put under pressure to sign an amended contract.

In a key case, Dekker v Stichting Vormingscentrum Voor Jonge Volwassenen (ECJ 177/88) the European Court of Justice states that discriminatory acts related to pregnancy are directly discriminatory on the gender ground and that a pregnant woman cannot be compared to either a sick man or a non-pregnant woman.  The Court found that since pregnancy is a uniquely female condition, where a woman experiences unfavourable treatment on grounds of pregnancy such treatment constitutes direct discrimination on the grounds of gender, within the meaning of the Equal Treatment Directive (76/207/EEC).

Based on the evidence and submissions, I find that the Respondent has discriminated against the Complainant on the grounds of gender and related to her pregnancy.  

In considering redress, I have taken into account the well established case, often cited by the Labour Court Von Colson & Kamann v Land Nordrhein- Westfalen [1984] ECR 1891, that the sanction be "effective, dissuasive and proportionate."

CA-00063464-001             Employment Equality Act 1998

I find that the Respondent has discriminated against the Complainant on the ground of gender.

CA-00063464-002             Employment Equality Act 1998

I find that the Respondent has discriminatorily dismissed the Complainant on grounds of gender and related to her pregnancy.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under section 82 of the Act.

CA-00063464-001             In accordance with Section 79 of the Act, I have decided that the Respondent has discriminated against the Complainant.  In accordance with Section 82 of the Act,      I order the Respondent to pay to the Complainant the sum of €124,800 for the effects of the act of discrimination including the distress caused to her.

CA-00063464-002             I have decided that the Respondent discriminated against the Complainant by dismissing her when she was pregnant.   I note the Complainant would have been due to return to work in July 2024 as per her estimation in correspondence with the Respondent.  I order the Respondent to pay to the Complainant the sum of €11,400 in respect of loss of earnings in the period July to September 2024.

Dated:   18th November 2024

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Key Words: