ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00051426

Parties:

Complaints:

Date of Adjudication Hearing:  29/08/2024

Workplace Relations Commission Adjudication Officer:  Penelope McGrath

Procedure:

In accordance with Section 79 of the Employment Equality Acts, 1998 (as amended) a number of complaints have been referred to the Director General of the Workplace Relations Commission who has in turn deemed it appropriate that the complaints be investigated with any appropriate and/or interested persons to be provided with an opportunity of being heard. In these circumstances and following a referral by the said Director General, of this matter to the Adjudication services, I can confirm that I am an Adjudicator appointed for this purpose (and/or an Equality Officer so appointed). I confirm I have fulfilled my obligation to make all relevant inquiries into the complaint. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered in the course of the hearing as well as any written submissions disclosed in advance of the hearing and in the course of the hearing (and which have been opened to me).

Where a person believes that they have been discriminated against on one of the nine recognised grounds or in any other way has been treated unlawfully under the Employment Equality Acts they must write to the party that they believe has treated them unlawfully using the EE2 form asking for relevant information to determine their course of action. The proposed Respondent may reply by way of form EE3. No issue has been made herein.

The Complainant herein has referred a matter for adjudication as provided for under Section 77 of the 1998 Act (as amended). In particular the Complainant (as set out in her Workplace Relations Complaint Form dated 23rd of April 2024) seeks redress from the Respondent in circumstances where she claims her Employer behaved unlawfully and discriminated against her in the course of her employment wherein she says that she was treated less favourably than another person has or would have been treated in a comparable situation on the grounds of her Gender and on the grounds of her Family Status (as detailed in Section 6 of the 1998 Act (as amended)).

The Operative Section is Section 6 of the Employment Equality Act 1998 where :-

Sub Section 6 (1) For the purpose of this Act…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) …..(the “discriminatory grounds”).

Section  6 (2) As between any 2 persons the discriminatory grounds .. are…

• (a) That one is a woman and the other is a man (the “gender ground”)…

(c) That one has a family status and the other does not (the “family status ground”)…

The Complainant has signalled that the employer treated her unlawfully by discriminating against her in the conditions of her employment. In the evidence tendered the Complainant also made a case for victimisation.

Also relevant is the assertion in 6(2A) which specifically deals with pregnancy related issues and which states:

“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.”

It is accepted that the entire period of pregnancy and maternity leave constitutes a special protected period. Article 10 of the EU Pregnancy Directive prohibits the dismissal of workers who are on maternity leave save for in exceptional circumstances and require an employer to cite “duly substantiated grounds in writing”. It is not sufficient for the employer to simply aver that the dismissal during pregnancy was for other, unrelated, reasons.In the case of Assico Assembly Ltd  -v- Corcoran EED 033/2003 the Labour court found that:

“Where the employee is dismissed while pregnant or on maternity leave, both legislation and case law states 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 practise, should be set out in writing.”

In the event that the Complainant is successful, it is open to me to make an award of compensation for the effects of the acts of discrimination and/or of the victimisation. I can also give direction on a course of action which might eliminate such an occurrence in the future (per Section 82 of the 1998 Employment Equality Act).

Guidance on quantum in relations to awards of discrimination has been given by the Labour Court in the case of Lee t/a Peking House  -v-  Fox EED036 :

“Effects which flowed from the discrimination which occurred. This includes not only financial loss suffered by the Complainant arising from the discrimination but also the distress and indignity which she suffered in consequence thereof”.

Generally speaking, in employment equality issues the complainant has little or no direct evidence of discrimination. EU law recognised this and has adopted a burden of proof in all Equality Directives which recognises such difficulty. Article 19(1) of the Recast Directive (Directive 2006/54) provides as follows –

              “….when persons who considered themselves wronged because the principle of equal treatment has not been applied to them establish, before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment.”

This has been transposed into Irish law by section 85A of the Employment Equality Acts: 

“…in any proceedings facts are established by… a complainant from which it may be presumed there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.”

The Labour Court and the WRC have approached the issue in the same way and the test for applying section 85A (burden of proof) is well settled in a line of decisions of both bodies starting with the Labour Court’s Determination in Mitchell v Southern Health Board ([2001] ELR 201):

“..the claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only where these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment.”

The law provides robust protection to women who have been dismissed for any reason relating to pregnancy, birth and maternity leave, in accordance with it’s obligations under EU Law.

In addition to the above and in accordance with Section 41(4) of the Workplace Relations Act, 2015 the Complainant has presented a further complaint of a contravention of and following the presentation by an employee of a complaint of a contravention by an employer of an Act (or Acts) contained in Schedule 5 of the Workplace Relations Act of 2015. In this instance a complaint has been made under Section 7 of the Terms of Employment (Information) Act, 1994 in circumstances where a Contract of Service has commenced and where the said Employee employed by an Employer is entitled to have been provided (within two months of the commencement of the employee’s employment with the employer) with a Statement of certain Terms of the employment.

The said terms are specified in Section 3 of the 1994 Act and include items such as names, addresses and place of work. There should also be a job title and a description of the nature of the work. The start date and the nature/duration of the Contract should be included in the statement as well as the terms of the remuneration. This statement should be dated and signed with copies retained by both parties.

In addition to the foregoing, The Employment (Miscellaneous provisions) Act of 2018 (s.7) amended Section 3 of the Terms of Employment Act 1994 so as to oblige Employer’s to provide a new Employee with a written Statement of certain core details (names, employer’s address, nature of Contract, remuneration and hours) concerning the employment within 5 working days of the employment commencing. Failure to provide the core details after one month of continuous service can lead to an award of four weeks remuneration. The 2018 Act came into effect on the 4th of March 2019.

Background:

Summary of Complainant’s Case:

Summary of Respondent’s Case:

Findings and Conclusions:

I have carefully listened to the evidence adduced in the course of this hearing.

The Complainant was interviewed by a Ms CI and was engaged to work at the bar and restaurant known as The Imperial a very busy establishment in Cavan town. The Complainant came with plenty of experience working in the service industry. She had previously worked as a bar supervisor, in banqueting and as a hotel receptionist. The employment with this Respondent commenced on the 21st of September 2023. The Complainant indicates in her complaint form that she was doing a 39-hour week. The Complainant appears to have been engaged as a floor supervisor.

The Complainant felt she had started well in the workplace, and she said that even the proprietor Mr. K had said that she had fitted in well. The Complainant had had no complaints and said she believed that she had fitted in well. She enjoyed the customers and the fast pace had not phased her. Ms CI indicated that she had asked the Complainant to up her pace on one occasion – mainly to set an example to junior wait staff. I can accept that, in a fast-paced work environment, directions to keep things moving need to be constantly given. This does not, however, necessarily serve to put someone on notice that their performance is wanting.

Seven weeks into the employment the Complainant sought out Ms CI to tell her that she was pregnant. This was November 9th2023. This was a private conversation and the Complainant said that she had been very nervous about having to tell her new employer about the situation. In fairness to Ms CI, she reacted very well to the news and hugged the complainant telling her congratulations. Hugely relieve the complainant explained how nervous she had been and Ms CI confirmed in her own evidence that she had said to the Complainant  don’t worry your job is perfectly safe.

The 9th was a Thursday and I understand that the Complainant was next due to work Saturday the 11th of November and again on Sunday 12th of November. On the 11th the bar was very busy, and everyone was tired at the end of the shift. There is some question over whether there was a need to distribute tips that evening as sometimes the tips might be done on the next day. However, it does seem that the complainant volunteered to do the tips and her supervisor/line Manager IN told her she could if she wanted to. IN was going home at that stage and was not going to do the tips. The Complainant assigned the usual 20% to the kitchen staff leaving 80% to be distributed to the floor staff. The Complainant noted that no member of the Bar staff was to be included that evening. As I understand it, a physical written note would be made by the Supervising Manager if a member of the Bar staff was to be included and this would only happen if said member of the Bar Staff had been called on to assist across the floor during particularly busy times. As noted, there was no such note in the tips casket that evening and the complainant set about distributing tips. In her evidence the Complainant had stated that some of the younger members of staff had sought their tips that evening and that was the reason she felt obliged to calculate and distribute. I understand the complainant put tips into separate named envelopes for collection.

On the 12th a member of the bar staff -B -who had worked the night before made a complaint about her not having been included in the tip distribution the night before. The complaint appears to have been made to Ms CI who tackled the complainant. All sides accept a genuine mistake had been made. The Complainant could not possibly have known that Ms. B should automatically have been included (as part of an in-house arrangement). Ms CI appears to have left it to the Complainant to sort out the problem. The Complainant opted not to go back to the kitchen staff looking for a return of monies and instead went around the floor staff looking for the return of their tips for re-calculation and distribution. The Complainant said that she ended up putting more money back into the kitty then she should have. It was not made clear to me why this had had to happen.

I have to say that I never really got a satisfactory understanding as to what went wrong with the re-distribution of the monies. Ms CI in her evidence kept telling me that it was opaque and that there was no record and no visibility. Ms CI seems to have accepted Ms. IN’s intervention when she said that she wasn’t doing it correctly.  I myself pointed out that there was hardly a need to go to the kitchen staff to recover monies as the 20% going to them was never going to change – yet this caused a particular problem with Ms CI. I am noting that neither Ms CI nor the Complainant’s Supervisor IN stepped in to help or direct or ameliorate the situation in any way. They were both cross with how the initial problem had been rectified. Neither had stepped in to help. I have formed the very distinct impression that Ms. B kicked up a considerable fuss and the Complainant was targeted for the blame. I need to also note that in giving her evidence Ms CI indicated that there had previously been a problem with a member of staff stealing money. The implication of introducing this evidence was clear.

In any event later on that day, on the 12th of November the Complainant was spoken to by Ms CI who indicated that she felt she could no longer trust the Complainant with tips. The Complainant says that Ms CI then went on to say that she had received a number of complaints about the Complainant, and she asked whether the Complainant could cope with her workload? Ms CI did not indicate who had made complaints. The Complainant says that Ms CI suggested that she (Ms CI) was getting pressure from upstairs to replace the Complainant. In her evidence to the WRC Ms. CI said that some junior wait staff had made complaints about the Complainant not being fully present. She did not say when how or in what context such things might have been said. She certainly did not act on them. In fact, Ms CI stated in her evidence that her observation was that the Complainant’s standard was fine and that she was polite and well liked. I note that the Complainant’s representative has urged me to identify this conversation between CL and the complainant and in particular take note of the suggestion that the Complainant should take a work demotion as being a form of victimisation triggered by the newly acquired knowledge of the Complainant’s pregnancy.

The Complainant was very distressed and was crying. She says she could not believe that there was an issue. She did challenge Ms CI timing, asking if this had something to do with the pregnancy? Ms CI emphatically denied that this was the case. Don’t put words in my mouth she said. Ms. CI refused to indicate which members of staff had been complaining about the Complainant and was non-specific about the nature of the complaints being made. To my mind, this was a regrettable thing to do to a member of staff as it could only serve to undermine her confidence. In her evidence the Complainant noted that she was well used to working in a team situation and had no reason to think that she was considered slow. The Complainant indicated in her evidence that this interaction which questioned her loyalty, found her untrustworthy and doubted her ability to perform her workload amounted to victimisation and harassment for the purpose of the Employment Equality Acts. This was she said an attack.

Ms CI suggested that the complainant needed to drop down from her role as supervisor and maybe work as a waitress. The Complainant resisted this demotion as she needed the money and particularly given her pregnancy. Although this is denied by CL, the objective implication herein is that the complainant would not be able to work as hard as might be expected in this workplace by reason of her pregnancy.

The final outcome of this meeting was that Ms CI backtracked and agreed that the complainant could continue in the role that she was in until after Christmas with an option to review the situation in January. There is, to my mind, an implicit threat, to this final arrangement as the Complainant was now fighting for her job. The Complainant finished up her shift and went home on that Sunday the 12th of November. She was glad that she would be able to show, in the timeframe agreed to, that she could and would work through this pregnancy. I note that the Complainant felt compelled to admit in the course of this conversation that she needed the job and the income in circumstances where the father of the baby was not going to be supportive. I have some sympathy for how humiliating this admission must have been.

The Complainant was not in the workplace on the Monday and to her surprise she discovered on Tuesday the 14th that she was not included in the roster for the upcoming week and weekend. The Complainant immediately rang Ms CI who told her that she had been served her notice as of the previous day. The employment was, in effect, over.

The Complainant was left with the unavoidable impression that the pregnancy discreetly announced to her manager five days earlier had resulted in a blunt termination of her employment.

Counsel for the respondent put it to the Complainant that if the Complainant’s performance was not up to the required standard, then the dismissal might be reasonable? The Complainant agreed with this proposition though pointed out that as she had not yet been given any of the written term and conditions of her Contract of Employment, she had no idea how the workplace operated in terms of performance management, probation periods and dismissals. There was, she said, no Contract to demonstrate what her protections were and what her rights and entitlements might be.

Counsel for the Respondent asked the Complainant why she had waited for more than five months to issue the complaint form? I don’t think anything in particular turns on the time taken. However, I am surprised to note that in the submission presented by the Respondent to the WRC in August 2024 (some nine months post termination) the Respondent has pivoted to justifying the termination of employment by reason of some unproven allegations of sexual misconduct on the part of the Complainant. There was no hint of any such allegation or any consideration of such an allegation at the time that the Complainant herein was dismissed. It would not be unreasonable to form the view that this might not be  some elaborate  attempt to shore up the decisions taken in November of 2023.

In any event, Ms. CI gave evidence that on that fateful night of the 12th of November (and after the Complainant had gone home) another floor supervisor K came forward and made a complaint about the Complainant. K alleged that the Complainant had placed her hand on his buttocks. Ms. CI accepted K’s account that the interaction had happened in the manner alleged and that it had been purposeful and therefore inappropriate. To be fair, Ms CI had been previously approached by K when he had felt that the Complainant had inappropriately leant across him, reaching for something in a tight workspace. 

Ms CI stated that she had then and there decided that she was going to terminate the employment. She sought to do it by phone on the Monday the 13th of November but was unable to make contact. It was in these circumstances that the Complainant herself had to ring up to find out that she was being dismissed. The complainant was told that she wan’t a good fit, that it wasn’t going to work out and that other staff had raised issues. I note that the Complainant was not told that she had been identified as a sexual miscreant by a colleague, had been found guilty of the allegations and denied any opportunity to defend herself. Ms CI said that she just decided to take her out of the equation. In cross examination MsCI agreed that the incident with K had never been investigated or even noted down by way of an incident report form.

K himself also gave evidence. It was evident that K had, from early on, formed the view that the Complainant did not have a great work ethic, that she constantly required support and he had no respect for her work performance. He said he’d have fired her a long time ago. He accepted that he had made his views known to MsCI. K went on to describe an incident some time back where the Complainant had touched him when reaching for a card machine. It was a tight space. He had reacted and whilst he had told Ms CI he did not make much of it. Then on the 12th of November 2023 the Complainant had come up behind him, he says, at the till area and he had felt her hand touch his buttocks. He says he slapped her hand. He was very annoyed and made a complaint up the line that night. When asked about these two incidents the Complainant says she does not remember anything of that nature happening. It is she says a busy and often tight workspace. Nothing was ever said to her, and she has no sense that K slapped her hand away from him. Having given some thought to the opposing narratives, my sense is that K had formed an animus towards the Complainant and given the opportunity to give evidence against her he had, as noted by the Complainant’s representative, gratuitously stretched the truth.

Irish law provides robust protection to women who have been dismissed for any reason related to pregnancy in accordance with its obligation in European law.  It is well established in case law that pregnancy is “a special protected period” and the Labour Court has found that only “the most exceptional circumstances not connected with the condition of pregnancy allow a woman to be dismissed while pregnant.”  The rationale for this approach is evident from the decision of C-232/09 Danosa v. LKB Lizings SIA [2011] CMLR 45, at 60, the Court held as follows:

“It is precisely in view of the harmful effects which the risk of dismissal may have on the physical and mental state of women who are pregnant, have recently given birth or are breastfeeding, including the particularly serious risk that women may be prompted voluntarily to terminate their pregnancy, that, pursuant to Article 10 of Directive 92/85, the EU legislature provided for special protection for women, by prohibiting dismissal during the period from the beginning of pregnancy to the end of maternity leave.” 

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 85A of the Acts provides for the allocation of the probative burden between a complainant and a respondent in cases coming within its ambit.  In the matter of Mitchell v. Southern Health Board [2001] ELR 201the Labour Court held that: -

“The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them.  This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.  [emphasis added]

It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the Respondent to prove that there is no infringement of the principle of equal treatment.”

However, it is now well established that the existence of the pregnancy itself is sufficient to shift the burden of proof to the employer to prove that a dismissal of a pregnant employee was not on grounds of pregnancy.  The actual fact of pregnancy is the “primary fact”.    In effect, what this means is that for an employer to dismiss a woman during her pregnancy, regardless of the reason for that dismissal, they must have duly substantiated reasons for the dismissal provided to the employee in writing. These reasons must be substantial. As held by the Labour Court in Assico Assembly Limited as cited above.

In relation to this burden of proof in matters involving a specific allegation of pregnancy related dismissal I am aware of the the following extract from Bolger, Bruton and Kimber, Employment Equality Law (Round Hall Press, 2012): -

“The case law on burden of proof in cases of alleged pregnancy dismissal has developed in a singular manner due to the particular provisions of the Equal Treatment and Pregnancy Directives.  It is now well established that the existence of the pregnancy itself is sufficient to shift the burden of proof to the employer to prove that a dismissal of a pregnant was not on the grounds of pregnancy.”

In the matter of Teresa Cross (Shanahan) Croc’s Hair and Beauty -AND- Helen Ahern [EDA 195] the Labour Court set out at considerable length its understanding of the legal protections for pregnant women as follows: 

“Since the decision in Dekker the protection afforded to pregnant women in employment has been strengthened considerably in the case law of the CJEU and in the legislative provisions of the European Union.  Equality on grounds of gender is now expressly guaranteed by Article 23 of the Charter of Fundamental Rights of the European Union. 

The Charter is now incorporated in the Treaty on the Functioning of the European Union (the Lisbon Treaty) and has the same legal standing as all preceding and current Treaties.  It can thus be properly regarded as part of the primary legislation of the European Union. 

The jurisprudential principle that discrimination on grounds of pregnancy constitutes direct discrimination on grounds of sex is now codified in Directive 2006/54/EC on the Principle of Equal Treatment of Men and Women (the Recast Directive).  This Directive provides, at Article 2.2 (c), that any less favourable treatment of a woman related to pregnancy or maternity leave within the meaning of the Directive 92/85/EEC constitutes unlawful discrimination for the purpose of that Directive”.

The Labour Court in Teresa Cross cites extensively from case 406/06 Paquay v. Societe d’architectes Hoet + Minnie SPRL [2007] ECR 1-8511.  The Labour Court held in Teresa Cross that the Court in Paquay

“pointed out that in accordance with its case law the prohibition of less favourable treatment, on grounds of pregnancy comes within the ambit of both the Equal Treatment Directive and the Pregnancy Directive. The importance of providing real and effective redress in cases where the rights of pregnant workers are infringed was emphasised by the Court at pars 45-47 if its judgment in Paquay. 

In summary the Labour Court in Teresa Cross held as follows:

“It is abundantly clear from these authorities, and from the legislative provision of the European Union, that women are to be afforded special protection from adverse treatment on account of their condition from the commencement of their pregnancy to the end of their maternity leave.  The entitlement to that protection is to be regarded as a fundamental right within the legal order of the Union which the Courts and Tribunals of the Union must vindicate within the limits of their jurisdiction.  It seems equally clear that where a pregnant woman is treated adversely because of her condition during this period of special protection the employer bears the burden of proving, on cogent and credible evidence, that such treatment was in no sense whatsoever related to her pregnancy… [emphasis added]. 

Having regard to the case law cited above, I find the Complainant has discharged the burden of proof in regard to setting out a prima facie case as set out in the Acts. Indeed, the case law allows the fact of pregnancy to itself operate as a primary fact. Accordingly, the Respondent bears the burden of proving, on “cogent and credible evidence”, that the Complainant’s dismissal was not in any way related to her pregnancy. 

On balance the Respondent has failed in this regard. The nexus between the revelation of the pregnancy and the termination of the Employment – five days later – is unavoidable. The Respondent described the Complainant as not being a good fit and being complained about by colleagues. There was no suggestion of the Complainant being a bad employee before she had disclosed the pregnancy. Thereafter, the retro-fitting of a rationale in the form of the Complainant being a sexual predator is at best spurious and unworthy of an otherwise seemingly fair Manager.

I cannot know what was going on behind the scenes. The suggestion that the Manager was coming under pressure from upstairs was not explored.  It is also worth noting that even though the Complainant asked for the reasons for her dismissal to be put in writing, this was refused. The Respondent thereby failed to comply with Article 10 of the Pregnancy Directive to provide “duly substantiated grounds in writing” to the Complainant.

The abruptness of the Claimant's dismissal has raised an inference that the Claimant's pregnancy caused her to be treated less favourably than another employee would have been treated in the manner of her dismissal.

The Claimant seeks compensation for the effects of the discriminatory dismissal which she suffered. Guidance on quantum in relations to awards of discrimination has been given by the Labour Court in the case of Lee t/a Peking House v Fox EED036, holding that the quantum must compensate:

"[the] effects which flowed from the discrimination which occurred. This includes not only financial loss suffered by the Complainant arising from the discrimination but also the distress and indignity which she suffered in consequence thereof”. 

The Complainant was fortunate enough to get alternative employment in January of 2024 and worked through to the end of her pregnancy and the safe delivery of her child. This good fortune has no bearing on the quantum as the act of firing somebody who is pregnant is done in the full knowledge that finding alternative employment will be inherently difficult.

In the case of Svetlana Grodzieka -v- Ultra fresh SERvices Limited [EDA 32] the Labour Court held:

“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 considered as among the most egregious breaches of Employment Law.”

The Respondent accepted that no Statement of the Terms and conditions was provided and the Complainant must succeed in this complaint.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to a complaint 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.

Dated:   17th October 2024

Workplace Relations Commission Adjudication Officer:  Penelope McGrath

Key Words: