Complainant

Respondent

Parties

Tamara  Vuletic

Capel Abbey Limited

Complainant

Respondent

Anonymised Parties

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Representatives

Barry Crushell Crushell & 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-00055487-001

09/03/2023

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The respondent did not attend the hearing of this matter. I am satisfied that he was on notice of the hearing, however the start of the hearing was delayed by 20 minutes to enable the respondent to make contact with the WRC. The respondent did not do so. The hearing preceded in the absence of the respondent.

The complainant and a witness for the complainant undertook to give their evidence under affirmation. The complainant was legally represented, and the hearing started with an overview of the complaint, followed by the evidence of the two witnesses and concluded with a summary from the complainant’s representative. The hearing was formally closed.

Following the conclusion of the hearing, the respondent submitted a medical certificate by e-mail. The certificate was dated four days prior to the hearing and referred to the principal’s unavailability for work. The respondent had been informed by the staff of the WRC a number of days prior to the hearing that in order to seek a postponement or an adjournment he needed to provide documentary evidence in advance of the hearing or to attend the hearing. No documentation was provided in advance of the hearing.

The complainant submitted that she started work for the respondent property management company in June 2022. She was originally employed on a salary of €25,000 per year but following a promotion received a salary of €28,000 per year.

The complainant submitted that her employment was terminated on 3 February 2023 having informed her employer that she was pregnant the week prior to that date. The complainant submitted that she was given two reasons for her dismissal, firstly that there were insufficient funds to sustain her employment and secondly that there had been decreased activity since her employment commenced. She submitted that this was not the case as her employment was terminated following one of the more successful months that the respondent had seen.

The complainant submitted that there was no legitimate reason for the termination of her employment and that as it followed within a week of her announcing her pregnancy there was a causal link between pregnancy and her dismissal.

The complainant submitted that she looked for work immediately following her dismissal but has been unable to find employment in the intervening period noting that her loss of earnings amounts to €37,000.

The complainant submitted that it has been regularly held that discrimination based on pregnancy is discrimination based on gender.  The complainant noted that 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.  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 complainant submitted that 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 compianant submitted that 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 of its judgment in Paquay. Here the Court said:

“However, the objective is to arrive a real equality of opportunity and cannot therefore be attained in the absence of measures appropriate to restore such equality when it has not been observed. Those measures must guarantee real and effective judicial protection and have a real deterrent effect on the employer (Marshall, paragraph 24).

Such requirements necessarily entail that the particular circumstances of each breach of the principle of equal treatment should be taken into account. Where financial compensation is the measure adopted in order to achieve the objective previously indicated, it must be adequate, in that it must enable the loss and damage actually sustained as a result of the discriminatory dismissal to be made good in full in accordance with the applicable national rules (Marshall paragraphs 25 and 26).

It is necessary to recall that, in accordance with Article 12 of Directive 92/85, Member States are also bound to take the necessary measures to enable all workers who consider themselves wronged by failure to comply with the obligations arising from that directive, including those arising from its Article 10, to pursue their claims by judicial process…

While recognising that the Member States are not bound, under Article 6 of Directive 76/207 or Article 12 of Directive 92/85, to adopt a specific measure, nevertheless the fact remains, as is clear from paragraph 45 of the present judgment, that the measure chosen must be such as to ensure effective and efficient legal protection, must have a genuine dissuasive effect with regard to the employer and must be commensurate with the injury suffered.”

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….

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.

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.”

The complainant submitted that 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 fact of pregnancy is the “primary fact”. In effect what this means is 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 and these reasons must be substantial as held by the Labour Court in Assico Assembly Limited as cited above.

The complainant submitted that the following extract from Bolger Bruton and Kimber, Employment Equality Law (Round Hall Press, 2012) notes: -

“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.”

The complainant further referred to Assico Assembly Ltd v Corcoran EED 033/2003, the Labour Court held:

" 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 practice should be set out in writing.”

The complainant submitted that in Emma Rooney v Nomos Productions ADJ-00039520, an employer had dismissed a pregnant worker and made reference to the worker's 'style ', 'synergy ' and not being the 'right fit ' when dismissing her. The employer had also, however, told the pregnant worker that she had done nothing wrong. The Adjudicator criticised the language used by the Respondent in dismissing the Claimant, noting: "Such imprecision of language can often be used to provide the cover needed to mask acts of discrimination. Where discrimination is being practised a perpetrator is unlikely to tell the victim openly that is what is happening and will normally resort to such euphemisms.”

The complainant contends that two reasons were given for her dismissal. Firstly, the respondent stated that there were insufficient funds to sustain her employment. Secondly, the respondent stated that activity had decreased since her employment commenced. However, the complainant contended that the month her employment was terminated was one of the more successful months the company had seen. The complainant suggested that this casts doubt on the legitimacy of the respondent’s reasoning behind the complainant’s termination, especially due to the proximity of the termination to the disclosure of her pregnancy.

The complainant submitted that therefore, it is for the respondent to prove that the complainant was dismissed for grounds other than her pregnancy.

Witness evidence:

Witness #1 – the Complainant.

The complainant stated that she had worked in the insurance industry prior to being placed with the respondent by an agency. She noted that she was studying to get a property qualification.  She stated that ownership in the respondent changed in September 2022 by way of some class oof a voluntary transfer.

The complainant stated that in her probationary review the respondent was really happy with her work had wanted her to get her licence. She noted that she was given a consistent amount of work at all times. She stated that there was no discernible difference in the level of work she was given before and after the changeover. She stated that she was involved in emails meetings, viewings, inspections and administration. The witness stated that her co-worker (Witness #2) joined in September 2022.

The complainant stated that she became aware of her pregnancy on 10 December 2022 and informed the respondent on two separate occasions, 20 and 23 January 2023. She stated that everything was fine and noted that no one asked her as to how far along she was. She noted that there were lettings arranged for 11 & 26 January, and 2 February. She knows this because she mostly arranged the sales. The complainant noted that there was a lot of economic activity in the office during December and January.

The complainant stated that she was handed a notice of termination on 30 January and 30 minutes later received an e-mail of the notice. She proceeded to work out the notice until 3 February. The complainant stated that the issue of reduced hours was never raised, redundancy was not mentioned, and no alternatives were put to her.  The complainant noted that there was some chat around the office about her pregnancy, chat about advice and gender reveal party.

The complainant mentioned that by way of mitigation of her loss, she broadened out her search and applied for administration roles with recruitment agencies and had subsequently secured employment at a similar rate of €28,000 per annum.

Witness #2 – A colleague - an Office Administrator

This witness stated that she shared the office with the complainant but took on more of the administration tasks. She stated that she was in the same room as the complainant, although she subsequently clarified that she worked in a different room.

The respondent did not attend the hearing.

The complainant submitted that she was discriminated against by the termination of her employment after telling her employer of her pregnancy.  She supported her complaint with cogent oral evidence.

Section 85A(1) of the Act states:

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.

Having regard to all the foregoing, I am satisfied that the complainant has established that she was dismissed, and that the respondent was aware of her pregnancy at the time of her dismissal.  I am satisfied that she has established facts from which it may be inferred that she was discriminated against on the basis of gender. It now falls to the respondent to rebut the inference of discrimination raised by the complainant.

The respondent did not attend the hearing of this matter.

In the case of Nolan v Gino’s Italian Ice Cream Ltd (EDA2017).  The Labour Court determined, amongst other things, the following:

“In the case of Croc’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 Dekker case, 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 the Croc’s case 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.”

Having regard to the foregoing I am satisfied that the complainant was dismissed, and I am not satisfied that the respondent has rebutted the inference of discrimination raised, the employer has not demonstrated on cogent and credible evidence that the dismissal was in no sense related to her pregnancy.  I find the complainant was dismissed on the basis of her pregnancy. Accordingly, I find that the complainant was discriminated against in accordance with the Act.

As regards compensation the complainant noted that any compensation needed to provide a real and effective judicial protection for a pregnant employee.

In the Nolan v Gino’s Italian Ice Cream case, the Labour Court also determined the following:

“In assessing the level of compensation to be awarded, the Court has regard to the observations in the case of Case 406/06 Paquay v. Societe d’architectes Hoet +MinneSPRL (2007) ECR 1-8511 that the requirements of redress should ‘guarantee real and effective judicial protection and have a real deterrent effect on the employer’”.

The complainant’s salary amounted to €28,000 per annum. Taking all the factors into account, I am satisfied that an award of €40,000 is appropriate in all the circumstances of this complaint.

Having regard to all the written and oral evidence presented in relation to this matter, my decision is that the complainant was discriminated against when her employment was terminated after having informed her employer of her pregnancy.  I award the complainant compensation of €40,000 which I consider to be appropriate redress in all the circumstances.

Employment Equality Act – Pregnancy related dismissal established – no respondent evidence – redress awarded