Complainant

Respondent

Parties

Sarah  Cavanagh

 The Style Chair Ltd

Complainant

Respondent

Anonymised Parties

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Representatives

Terry Gorry Terry Gorry & Co. 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-00062659-001

08/04/2024

The complainant commenced employment with the respondent as a hair stylist in the respondent’s salon in September 2022.  She worked 24 hours per week.  A complaint form was received by the WRC on 8 April 2024.

The complainant provided a detailed written submission

The complainant submits that she began working for the respondent in September 2022 on a Fixed Term Contract (FTC) which ended on 31 December 2022.  She was offered a second FTC in March 2023, for the period from 1 January 2023 until 30 September 2023, to which she agreed. The complainant became pregnant in March 2023. From May 2023, she began to have medical complications related to her pregnancy. She formally announced her pregnancy on 12 June 2023.

Due to the medical complications of her pregnancy the complainant had to take time off work. She supplied the respondent with medical certificates as required.  She also discussed her maternity leave and was never given any indication that her contract would not be renewed.

The complainant submits that if she had not become pregnant, she would still be working for the respondent. Although her contract came to an end on 30 September 2023, the complainant continued working in the salon beyond this date.  In addition, the respondent requested her to provide medical certificates beyond the 30 September 2023, thus, the complainant puts forward, treating her like a permanent employee.

The complainant visited the salon on 17 October 2023, with a form to be filled out for maternity benefit purposes. The complainant spoke with the respondent about the form.  The respondent completed the form clearly indicating that the complainant’s first day of maternity leave was 12 December 2023 and her scheduled return to work date was 12 June 2024.  The complainant submits, that it was clearly conveyed to her that she was an employee, that she would be taking maternity leave and would be resuming in June 2024; there was absolutely no indication that she was no longer employed by the respondent and she, the respondent, had filled out the form as her employer on that date. The complainant submits that this document is a legal requirement as part of the application process for Maternity Leave Benefit required by the Department of Social Protection.

The complainant submits that on 19 October 2023, almost three weeks after her contract had supposedly ended, and two days after she had visited the salon in person, she received an email stating that her contract had expired.  The respondent had not discussed this with her when she had visited the salon two days before, nor had she ever discussed it in person.

The complaint submits that the email she received from the respondent, stating that her contract had expired, indicates that the ending of her contract was related to her pregnancy, at a time when she was still an employee of the salon, submitting the necessary medical certificates, with a confirmed commencement of maternity leave of 12 December 2023 and with scheduled appointments still on the system. She was still included as a member of the work WhatsApp Group.  The email included the line; “I am happy to discuss a new Fixed Term contract after your maternity leave ends, if you wish to seek employment within The Style Chair and of which hours you are available to work, and availability within the salon that I may have at that time.”

The complainant believes that her contract was not renewed because she was pregnant and would not accrue annual leave or other leave entitlements and, as a result, the respondent did not wish to pay these entitlements. According to the complainant, her position still exists as advertised on social media.

The complainant also submits that the respondent continued to register herself as the complainant’s employer on the Revenue website until 1 January 2024.

The complainant submits that she was not given the opportunity to have a permanent contract due to her pregnancy, other staff members working for the respondent were all made permanent. She submits that she was treated differently based on her pregnancy.

The complainant gave evidence on affirmation at the hearing.

The complainant stated that she believed she was treated less favourably than another employee who was not pregnant.

In answers put to her in cross examination, the complainant accepted that she did accept a contract in 22 March 2023, which was to run until 30 September 2023. The complainant stated that she did not accept that her contract ended on 30 September 2023.

When asked whether she had applied for any other roles in the respondent’s salon thereafter the complainant stated that she had not done so as she felt badly done by.

When it was put to her that the email dated 19 October 2023 made it clear that her contract was at an end, the complainant highlighted that the respondent had filled in the Maternity Benefit form three weeks after the contract was due to end.

In closing, the complainant stated that the non-renewal of her contract was due to her pregnancy; that she was treated less favourably than another employee.  She pointed out that she was only told three weeks after the end date of her contract that it was not being renewed.

The respondent provided a detailed written submission.

The respondent submits that the complainant has failed to establish a prima facie case.

The respondent vehemently denies the complaint and asserts that the complainant’s employment came to an end with the expiry of her Fixed Term Contract (FTC).

The respondent entity owner (Ms Hammond) submits that she enjoyed working with the complainant and was confident that the complainant was happy in her job.

The respondent submits that the complainant became ill in early September 2023 and was certified unfit to work from 1 to 7 September 2023. She then took some annual leave and again was certified as unfit to work until 29 September 2023.  On 3 October 2023, the complainant submitted another sick cert covering the period of 29 September to 13 October 2023. Another cert was submitted covering the period to 20 October 2023.

The respondent submits that on 19 October 2023, she emailed the complainant and told her she had completed her maternity benefit forms as requested and that they were ready for collection.  The respondent further explained in the email that she did not require any more sick certs as her fixed term contract had ended since 30 September 2023.  On the same day the complainant responded saying that she had called in to collect her maternity forms and that she had left the keys and that she would “pop in for a coffee x”.

The respondent submits that the complainant was on a Fixed Term Contract which consisted of nine months, and which expired on 30 September 2023. The respondent submits that the complainant knew and accepted that her contract of employment ended on 30 September 2023 and the demands of the business obliged the respondent to advertise for a full-time stylist.

The complainant’s unavailability due to illness until 20 October 2023, at the earliest meant that the respondent did not renew the complainant’s contract.  The reasons for the non-renewal of the Fixed Term Contract were threefold:

(i)                  The complainant’s non availability due to illness.

(ii)                The demands of the business requiring the delivery of service to the growing client base.

(iii)               Concerns about the complainant’s performance.

The respondent submits that the complainant has failed to establish facts from which a reasonable inference of discrimination can be drawn.

Ms Hammond, (the respondent) gave evidence on affirmation at the hearing.

The respondent stated that she had had a good working relationship with the complainant, and she was shocked when it was made known to her that a complaint had been made to the WRC.

Regarding the last months of the complainant’s employment, she stated that she was provided with medical certs by the complainant and had discussed her absence with her. When the FTC came to an end, the respondent had been willing to discuss another contract with the complainant at some time in the future.

On the matter of the Maternity Benefit forms, the respondent stated that she had asked the complainant to supply the dates required and she had duly filled in the form. She never had an intention of paying the complainant maternity leave pay.

In answer to questions put to her in cross examination, the witness stated that the dates on the Maternity Leave form were those that the complainant had given to her, she thought the complainant would get social welfare benefits.

In closing, respondent put forward that there had been two FTCs and there was no legitimate expectation of another contract being offered.

The respondent submits that the non-renewal of the complainant’s contract was due to her absences, the growing client base and her performance.

The respondent submits that the complainant has failed to make out a prima facie case and relies on the findings in ADJ-00011576 in support of this assertion. 

The respondent submits that the FTC between the complainant and the respondent had come to an end and relies on the Labour Court case Akina Dada Wa Africa and Claudia Horeau UDD/18/237 to support this assertion.

This complaint is made under section 77 of the Employment Equality Act.  The complainant asserts that she was dismissed for a discriminatory reason or for opposing discrimination; that her contract was not renewed because she was pregnant/sick.  She asserts she was treated less favourably than other employees who were not pregnant and who had their FTCs renewed.

The duration of a FTC is set out in a contract of employment. The contract automatically terminates upon the expiration of the term set out therein. The complainant accepted that she was working under a FTC, which expired on 30 September 2023.

A complaint form from the complainant was received by the WRC until 12 April 2024.

Section 77 (5) (a) of the 1998 Act states:

 “Subject to paragraph (b), 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 occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.”

The complainant’s employment ended on 30 September 2023, when her FTC expired. Whilst there may have been some communications and interaction between the parties after this date there was nothing that could reasonably be held to have extended  the employment relationship.

This complaint refers to a period outside the allowed 6-month period allowed under section 77 of the Act.

I find the complaint is out of time and I do not have jurisdiction to hear it.

The complaint is out of time and I do not have jurisdiction to hear it.

Fixed Term Contract, employment relationship, out of time.