SECTION 77, EMPLOYMENT EQUALITY ACT, 1998
PARCOURT LTD T/A CA F� VIENNA
- AND -
A. WORKER (CLAIMANT)
(REPRESENTED BY CONNOR POWER B.L. INSTRUCTED BY THE EQUALITY AUTHORITY)
Chairman: Mr Duffy
Employer Member: Mr Keogh
Worker Member: Ms Ni Mhurchu
1. Alleged unfair dismissal under Section 7 of the Employment Equality Act, 1998.
2. The claimant was employed as a counter and kitchen assistant by the respondent from September 1997 until she was dismissed on the 24th February 2000. It is alleged that the claimant was discriminated against because of her gender. The claimant submits that the respondent contravened Section 8 of the Employment Equality Act 1998 in relation to Section 6 of the Act.
The Company rejects the claim and states that the worker was not dismissed but that she left of her own volition.
The worker referred a complaint to the Court pursuant to Section 77 of the Act. A Labour Court hearing took place in Limerick on 1st November 2002.
The complainant alleges that she was dismissed from her employment because she was pregnant. This, it is submitted, amounted to discrimination on grounds of her gender contrary to Section 8 of the Employment Equality Act 1998 (the Act) in terms of Section 6 of that Act. A Labour Court hearing took place in Limerick on 1st , November, 2002.
The material facts are as follows;
The complainant worked for the respondent intermittently from 1993 until late November 1999. Her last period of continuous employment commenced in November 1998. In August 1999 the complainant informed Ms Aileen Flynn, a director of the respondent, that she was pregnant and that she was due to commence maternity leave in March 2000.
- The complainant developed a pregnancy related illness early in her pregnancy. She was absent from work on that account between August and November 1999. She provided the respondent with medical certificates in respect of this period of absence but was not paid sick pay. The complainant returned to work for 4 weeks in November. Towards the end of that month she was again advised by her doctor to cease working due to a recurrence of the pregnancy related illness.
The complainant’s illness continued for the remainder of her pregnancy. She did not return to work but did not resume submitting medical certificates to the respondents. The complainant was receiving Social welfare Disability Benefit in this period and received medical certificates for that purpose.
- On or about March 2000, the complainant proposed to commence her statutory maternity leave. She requested the respondent to sign a form confirming to the Department of Social Welfare that she intended to return to work. The respondent declined to sign the form and informed the complainant that her employment was terminated.
- The Evidence.
The complainant told the Court that in early December, after the recurrence of her pregnancy related illness, she went to the respondent’s caf� and spoke with her supervisor, Ms Sinead Lynch. She informed Ms Lynch that she was unwell and that her doctor had advised her to remain out of work indefinitely. The complainant told the Court that she then spoke to Ms Aileen Flynn, who is a director of the respondent, in similar terms and advised her that she would send in medical certificates, as she had done previously. It was the complainant’s evidence that Ms Flynn told her that there was no need to send in medical certificates but to come back when she was fit for work.
- The Evidence.
The complainant told the Court that she did not resign from her employment and never gave any indication that she intended doing so. She also told the Court that the only reason why she did not send in medical certificates during the second period of illness was that Ms Flynn had told her that there was no need to do so. She said that on several occasions between December 1999 and January 2000 she visited the respondent’s caf� as a customer but had never been asked for medical certificates. The complainant also said that she had not received any telephone calls from the respondents at this time nor had she made any such calls. Specifically, the complainant denied that she had spoken to Mrs Flynn on the telephone prior to her visit to the caf� in December.
The complainant said that she was amazed, when in March 2000, the claim form for maternity benefit, which she had asked her employer to sign, was returned with a note attached to the effect that her employment had ended.
The complainant told the Court that she had not been provided with written particulars of her conditions of employment and had never received written particulars of any sick leave regulations.
- Mr Eamon Flynn, who is a director of the respondent, told the Court that the complainant had abandoned her employment and had not been dismissed. He said that the complainant failed to come to work in early December. They did not receive any medical certificates to cover her absence. Mr Flynn said that several telephone calls had been made to the complainants home to enquire if she needed further sick leave. They were unable to obtain a reply to those calls.
- By January 2000 Mr Flynn had formed the view that the complainant did not intend to return to work. In March Mr Flynn received the application form for maternity benefit which the complainant wanted him to sign. He thought about the matter for some 10 days and then decided not to sign the form. Mr Flynn told the Court that since he no longer regarded the complainant as an employee, it would have been fraudulent for him to sign this form.
Ms Aileen Flynn, who is the other director of the respondent gave evidence. She told the Court that she had a telephone conversation with the complainant in late November/early December during which the complainant told her she would not be returning to work. From this Ms Flynn took it that the complainant was resigning. Ms Flynn did not recall the complainant speaking to her when she visited the caf� in early December. Ms Flynn accepted that there was no mention of this telephone conversation in their written submission to the Court. Nor did Ms Flynn inform her co-director Mr Eamon Flynn of the conversation or of its content.
- The witness denied that she told the complainant that there was no need to send in medical certificates. She said that there was some mention of certificates in the course of the telephone conversation but that this referred to certificates outstanding from her previous period of illness. She may have told the complainant not to worry about those certificates.
- Ms Sinead Lynch, the caf� supervisor, gave evidence on behalf of the respondent. She could not recollect the meeting of early December when the complainant claimed to have visited the caf�. Ms Lynch told the Court that she was aware that the complainant’s absence was due to her pregnancy related illness. Ms Flynn had not indicated to her that the complainant had resigned. This witness recalled asking the complainant for medical certificates but could not recall when this request was made.
- Ms Lynch confirmed that the complainant had told her that Ms Flynn had said that there was no need for medical certificates. Ms Lynch had told Ms Flynn what the complainant has said. Ms Flynn has told her that this was not the case. Ms Lynch did not pursue the matter further with the complainant. Ms Lynch confirmed that the complainant had given her the application form for maternity benefit in March 2000 and requested her to have it signed by Mr Flynn. The witness did not know what the complainant’s employment status was at that time but assumed that she was not coming back to work.
Conclusions of the Court:
- This case turns on whether the complainant was dismissed from her employment, as she contends, or resigned, as the respondent contends.
It is the respondent’s case that the complainant had effectively abandoned her employment by not sending in medical certificates from the beginning of December 1999 onwards. The complainant contends that Ms Flynn told her that there was no need to send in certificates.
There is also a difference in recollection between the complainant and Ms Flynn as to the time and circumstances in which the complainant informed Ms Flynn that she was not returning to work. There is also a crucial difference as to the content and import of what was said. The complainant gave evidence that she spoke to Ms Flynn personally at the caf� in the first week in December. Ms Flynn says that the conversation took place over the telephone and that the complainant told her she would not be coming back to work. She took this to mean that the complainant was resigning. The complainant says she told Ms Flynn that she was not coming back to work due to the recurrence of her pregnancy related illness and that she gave no indication that she was resigning.
There are many aspects of this case which are inconsistent with a conclusion that the claimant resigned from her employment in December 1999. The Court considers it significant that in their written submission to the Court, the respondent did not mention the telephone conversation referred to by Ms Flynn. Neither did they claim that the complainant resigned in December 1999. Moreover, the actions of the respondent in continuing to try and make telephone contact with the complainant up to January 2000, for the purpose of ascertaining her future availability for work, is not consistent with a conclusion that she had resigned the previous December.
- Whilst the complainant did not furnish medical certificates in respect of her illness after November 1999, the evidence of Ms Lynch confirms that she was, at that time, under the impression that certificates were not required. Ms Lynch confirmed that she had spoken to Ms Flynn on this matter. Ms Flynn told Ms Lynch that she had not excused the complainant from returning medical certificates. At that time it would have been easy for the respondent to clear up any misunderstanding by instructing the complainant to return medical certificates from then on.
- The Court notes that the respondent did not provide the complainant with a statement of the particulars of her terms of employment pursuant to section 3(1) of the Terms of Employment (Information) Act 1994. That section provides, at paragraph (k), that amongst the particulars to be provided are the terms or conditions relating incapacity for work due to sickness or injury. Had the respondent complied with their statutory obligation under the 1994 Act, the requirement to furnish medical certificates in respect of unpaid sick leave could have been clarified.
The Court was referred to the decision of the European Court of Justice inWebb v EMO Air Cargo (UK) Ltd  ECR 1-3567, Brown v Rentokil Ltd  ECR 1-04185andDekker v Stichting Vormingscentrum  ECR 1-3941These decisions, and Council Directive 92/85 (the Pregnancy Directive) make it clear that women who are pregnant are to be afforded special protection in employment and cannot be dismissed save in exceptional circumstances unrelated to their pregnancy. It is also clear from the authorities that an absence from work due to a pregnancy related illness can never to relied upon as grounds for terminating a woman’s employment, even where an absence of similar duration by a man or woman suffering from a pathological illness could be so relied upon.
- On balance, the Court has come to the view that the complainant never intended to resign from her employment and did not resign. The Court is further satisfied that the complainant had not abandoned her employment. Her failure to send in medical certificates was, at worst, due to a misunderstanding between her and Ms Flynn as to whether or not they were required.
The respondent came to the view that the complainant had either resigned or abandoned her employment without having made any attempt to clarify the position in that regard. Further, the respondents were aware of the fact that the respondent was pregnant and that she was suffering complications in her pregnancy.
Regardless of whatever misunderstanding may have existed in relation to medical certificates, the respondent should have been alert to the possibility that the complainant’s absence from work was attributable to her pregnancy. A prudent employer acting reasonably would, at least, have sought to ascertain the true position before treating the complainant’s employment as having come to an end.
- Having regard to all of the evidence that Court is satisfied that the complainant’s employment came to an end by dismissal when the respondent treated her as having abandoned the employment by being absent from work due to a pregnancy related illness. There is an abundance of authority for the proposition that dismissal in such circumstances amounts to direct discrimination on grounds of gender.
The Court determines that the complainant was dismissed in circumstances amounting to discrimination on grounds of her gender contrary to Section 8 of the Employment Equality Act 1998.
Taking account of all the circumstances of this case the Court determines that the appropriate redress is an award of compensation. The amount which the Court considers to be reasonable in all the circumstances is measured at €12,000. The respondent is hereby ordered to pay compensation to the complainant in that amount.
Signed on behalf of the Labour Court
15th, November, 2002______________________
Enquiries concerning this Determination should be addressed to Helena McDermott, Court Secretary.