SECTION 21, EMPLOYMENT EQUALITY ACT, 1977
PRIMERA SOFT FURNISHINGS LTD (RESPONDENT)
- AND -
AMANDA WELDON (APPELLANT)
(REPRESENTED BY THE EQUALITY AUTHORITY)
Chairman: Ms Jenkinson
Employer Member: Mr Keogh
Worker Member: Mr O'Neill
1. Appeal against Equality Officer's Recommendation Dec - E - 2001/007.
2. This dispute concerns a claim by the complainant that she was discriminated by the company on the grounds of her sex, due to her pregnancy, contrary to the provisions of Section 2 and in terms of Section 3 of the Employment Equality Act, 1977 when her duties were demoted and she was subjected to less favourable working conditions. The claim was referred to the Director of Equality Investigations on 16th December 1998 pursuant to Section 19 of the Act.
The dispute was investigated by an Equality Officer who held that“the claimant has not established that there is prima facie evidence of discrimination against her”and accordingly found that the company did not discriminate against the complainant in terms of Section 2(a) of the Employment Equality Act, 1977 and contrary to Section 3 of that Act.
The company went into liquidation on 14th June 2002. The employer did not attend the Court hearing. A representative of the Liquidator was present at the hearing in an observer capacity.
The grounds of appeal are:
(a) The Equality Officer erred in law and in fact in finding that the Respondent did not discriminate against the Appellant contrary to the provisions of the Employment Equality Act 1977.
(b) The Equality Officer erred in law and in fact in not awarding an appropriate remedy to the Appellant for the discrimination experienced by her and the consequent distress caused to her.
(c) The Equality Officer erred in law and in fact in holding the Appellant did not establish aprima faciecase of unlawful discrimination against the Respondent.
(d) The Equality Officer erred in law and in fact in finding that the burden of proof did not move to the Respondent.
(e) The Equality Officer failed to have due regard to the provisions of the Employment Equality Act 1977.
(f) Without prejudice to the foregoing the Appellant reserves the right to adduce such further or other grounds as may be appropriate to the appeal before or at the hearing of the appeal.
The Court heard the appeal on the 24th of September, 2002. (The Company is now in liquidation).
The factual background to the case can be summarised below:
• The company employed the complainant as a supervisor and machinist. Her employment commenced in 1994. There were two supervisors; the complainant was regarded as the more senior. As a supervisor she dealt with queries and complaints from customers and took orders and supervised four employees. This number could change at certain times.
• In or about April 1998 the owner was informed by the complainant that she was pregnant. Her maternity leave was due to commence from 1st October 1998 to end on 7th January 1999.
• In July 1998 the company appointed a production manager. This was a new position in the company and was created due to the severe financial situation facing the company. The complainant claims that as a consequence of this appointment several of her duties were removed from her.
• At her own request, the complainant was due to commence a three-day working week on 24th August 1998 until the start of her maternity leave on 1st October 1998. It became necessary, due to a shortfall in work, to place employees other than a skeleton staff on short time working on temporary basis from 26th August 1998. The three employees who were retained on a full time basis were chosen according to the respondents, because of their specialist functions (cutting, quilting, and curtain making), which were essential to maintain production. The complainant claims that she should not have been selected for short time working due to her seniority in the company.The Complainant’s case:
The complainant claims that she was unlawfully discriminated against on the grounds of sex, contrary to section 2 and 3 of the Employment Equality Act, 1977 and the terms of the Equal Treatment Directive and the Pregnancy Directive 92/85 of 19th October 1992.
It is the complainant’s case that she was discriminated against when several of her duties were removed after the appointment of the production manager in July 1998. She alleges that, following her announcement of her pregnancy; the owner no longer praised her work as he had done in the past. The complainant stated to the Court that he seemed put out by the idea of her pregnancy, though he made no specific remarks. At this time the owner decided to appoint a production manager. The complainant contends that prior to her pregnancy there was no mention of an appointment of a production manager and had she not being going on maternity leave there would have been no such manager appointed.
The complainant did not apply for the position as she was of the view that it was going to be a replacement for her when she was on maternity leave. She also maintains that she was not offered the job and that she would have been offered the position had she not been pregnant as she was effectively acting as manager at the time.
After the appointment of the production manager, the appellant maintains that there were difficulties at work, that her supervisory duties were removed and she viewed this as a demotion.
The complainant maintains that when she was laid off on 26th August 1998 due to seasonal work factors that it was the first time she was laid off as previously due to her senior status she had always been retained during such periods in the past. She submits that her selection for lay off was discrimination due to her pregnancy.
It is stated that the complainant’s conditions of employment changed following the notification of her pregnancy and the appointment of the production manager. It says she was treated in a hostile manner by the owner and was selected for lay off despite her seniority. It is submitted that the complainant was treated in a discriminatory manner on the grounds of her sex and this treatment is directly related to her pregnancy.
The Court is being asked to find that the complainant was discriminated against in relation to her conditions of employment and to recommend she be awarded compensation for her loss of earnings and for the distress suffered by her.
The Respondent’s case:
The employer did not attend the hearing. The Court had available to it information on the respondent’s position in this dispute, supplied by Counsel for the complainant. This information comprises of a copy of the employer’s submission to the Equality Officer for the hearing on 30th November 2000 and a copy of a letter from the company’s solicitor to the Office of the Director of Equality Investigations dated 2nd August 2000.
In the submission the respondent vehemently denied any allegation of discrimination.
The owner maintained that on being informed of her pregnancy he congratulated the complainant. During the period of her absence on sick leave the second supervisor was in overall charge of production at the factory. He disputed that he became hostile to her on hearing of her pregnancy, but rather that their relationship was good.
The owner indicated that there was no one person in charge of the entire factory and that he spent approximately 70% of his time out of the factory. He therefore relied on both supervisors to supervise the factory. This did not prove satisfactory, as there was no one who could ultimately take responsibility. Following the receipt of alarming audit results, the owner said that he met with both supervisors, sometime during the month of April 1998 to inform them that in view of the audit results that he would be making some management changes and that he needed someone in overall charge to take responsibility for the production aspects of the factory. He proposed appointing a production manager and he offered the position to the complainant who turned down the offer. The complainant’s salary was not reduced following the appointment of the production manager. The employer in the submission to the Equality Officer stated that he met with all staff on 9th July 1998 and informed them of the poor results of the company and asked for all staff to co-operate in reversing the situation. The complainant was specifically asked to cooperate with the new production manger.
The company stated that her claim that she was discriminated against by being laid off must be viewed in the light of the fact that she had sought three day working in advance of the company’s decision and in circumstances where she could not do heavy work and machine work due to her pregnancy. The company contends that on 28th August 1998 the production manager attempted to telephone her to advise her of her workdays for the following week. When she was informed that the complainant was away for the weekend the production manager reorganised the roster for the week commencing Tuesday 1st September.
The following week she advised the complainant of her roster for the next week, the complainant reported that she would not be reporting for work, as she was ill.
Conclusions of the Court:
In order to succeed, the complainant must establish aprima faciecase that she was treated less favourably than a person of the other sex.
It is accepted that the duties of the complainant changed after the appointment of the production manager in July 1998. She no longer had supervisory duties although she continued to receive the supervisor’s rate of pay. Similarly the duties of the second supervisor, who was not pregnant, also changed as a result of the appointment of the production manager.
The complainant denies that the owner offered her the position as production manager and that she turned down the offer. It is not possible for the Court to verify this fact in the absence at the hearing of the company.
Having carefully examined the situation which pertained in the company at the time the allege discrimination occurred, the Court accepts that it was imperative that the financial position of the company needed to be taken seriously at the time. The seriousness of the situation is further evidenced by the fact that by 14th June 2002 the company was in liquidation. The Court understands that the appointment of an experienced production manager was necessary as the company was in a crisis situation and the Company had to appoint somebody who could ultimately take responsibility when the owner was away on business. Faced with such a serious situation the owner needed to take every step to safeguard his company.
Having carefully examined the surrounding circumstances, the Court does not accept the complainant’s contention that this appointment was designed to be a replacement for her when she was not on maternity leave, nor that her duties were removed due to her pregnancy.
The complainant complained of the owner’s treatment of her after her notification of her pregnancy. The Court is of the view that the severe financial position of the company at the time undoubtedly contributed to deterioration in the atmosphere in the workplace at the time. From the company’s submission it is clear that the production manager was concerned by the hostility shown to her by the complainant and by the second supervisor and that attempts made by her and the owner to rectify the situation did not succeed. The complainant rejects this allegation of hostility.
It is claimed that the decision to lay off the complainant was an act of unlawful discrimination. The Court takes the view that the selection of employees for short time working in a situation where the company was undergoing severe financial difficulties is reasonable and cannot be compared with the normal seasonal lay offs where she had not been selected in the past due to her seniority. On this occasion only a skeleton staff were retained. In such circumstances it is not unusual or unreasonable to retain key personnel. The Court finds that there were exceptional circumstances for the company’s actions and that the actions were unconnected with the complainant’s pregnancy.
Prima Facie Evidence:
For an allegation of discrimination to be upheld under the Employment Equality Act, 1977, the complainant must showprima facieevidence of the discrimination. Once aprima faciecase is established the burden of proof falls on the respondent to show that discrimination did not take place.
This principle is incorporated in Council Directive 97/80 EC of 15th December, 1997 on the Burden of Proof in Cases of Discrimination Based on Sex which sets out the procedural rules to be followed in applying the evidential burden in discrimination cases and is regulated by the European Communities (Burden of Proof in Gender Discrimination Cases) Regulations 2001.
Article 3(1) of the Regulations, which transposed Article 4 of Council Directive 97/80/EC of 15th December 1997, provides as follows
- "3(1) Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that there has been direct or indirect discrimination in relation to him or her, it shall be for the other party concerned to prove the contrary"
InSouthern Health Board v Mitchell AEE/99/8the Court considered the application of Article 4 of the Directive and concluded as follows:
- "[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 as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment."
The Court is not satisfied that the complainant has establishedprima facieevidence of discrimination against her and therefore, the Court does not find that the burden of proof has moved to the respondent.
During the hearing the complainant also requested the Court to find that the actions of the respondent in the period from 16th November 1998 onwards constituted victimisation of the complainant on the part of the respondent contrary to section 2(d) of the 1977 Act. The Court is of the view that as this claim was submitted under section 2(a) and section 3 of the Act, the Court could not consider a further claim made under Section 2(d).
Having considered the evidence before it, the Court upholds the Equality Officer’s findings that the company did not discriminate against the complainant in terms of Section 2 (a) of the Employment Equality Act, 1977 and contrary to section 3 of that Act.
Signed on behalf of the Labour Court
Enquiries concerning this Determination should be addressed to Larry Wisely, Court Secretary.