SECTION 77, EMPLOYMENT EQUALITY ACT, 1998
MARTIN KEANE TRADING AS BLOOMS HOTEL
(REPRESENTED BY GERARD KELLY, SOLICITORS)
- AND -
(REPRESENTED BY THE EQUALITY AUTHORITY)
Chairman: Mr Duffy
Employer Member: Mr Keogh
Worker Member: Mr O'Neill
1. Alleged unfair dismissal under Section 77 of The Employment Equality Act, 1998
2. The worker referred her case to the Labour Court on the on the 21st of July, 2002, in accordance with Section 77 of the Employment Equality Act, 1998. A Labour Court hearing took place on the 4th of October, 2002. The following is the Court's determination:
Ms. Sabrina McNern (the complainant) claims to have been discriminated against by her former employer, Mr Martin Keane T/A Blooms Hotel, by being dismissed because she was pregnant. The complainant relies on Section 6 and 8(6) of the Employment Equality Act, 1998 (the Act). She also relies on a line of authorities in the case law of the ECJ which support the proposition that since only women can become pregnant, a dismissal on grounds of pregnancy is direct discrimination on grounds of gender.
The respondent denies that the complainant was dismissed by reasons of her pregnancy. He claims that the dismissal was attributable to redundancy.
Summary of Claimant’s Case:
In May, 2000, the complainant answered a newspaper advertisement for a job vacancy at Blooms Hotel, Dublin. The complainant understood from the advertisement that the vacant position involved receptionist duties, but at interview she was advised that the job on offer was in the accounts office. The complainant was offered the post and commenced employment with the respondent as an accounts assistant in June, 2000. In or around September, 2000, the Manager of the Accounts Section, Ms. Martina Keane, told the complainant that she wished her to take over certain pay-role duties. She told the complainant that she had arranged for her to undertake an appropriate two-day training course on certain dates in November.
In or around early November, the complainant became aware that she was pregnant. She informed Ms. Keane of her pregnancy.
On the day the training course was due to commence, the complainant rang Ms. Keane and informed her that she was unable to attend work due to extremely bad morning sickness. When the complainant was reminded of the course, she said she would try to attend on the following day. Ms. Keane told her not to do so. It was suggested on behalf of complainant that Ms. Keane cancelled the second day of the course as she was annoyed at the complainant’s inability to attend on the first day.
Certain complications developed in the complainant’s pregnancy. On the 17th November, 2000, she was referred to hospital by her doctor have those complications investigated. The doctor gave her a note confirming her incapacity for work. The complainant then telephoned Ms. Keane and informed her of the complications. She told her that she was attending the hospital and would not be at work. In the course of their conversation, the complainant again asked about participation in the payroll-training course. Ms. Keane replied that she (the complainant) had already cost the Company money and they could not afford to incur further losses if the she was sick the next time the course was arranged.
On the 11th January, 2001, the respondent, Mr Martin Keane, approached the complainant and asked to speak with her away from the hotel. They went to a local pub. The complainant told the Court that in the course of this meeting the respondent said that business was not good and that he would have to let people go at the hotel. In the course of their discussions, the respondent continually referred to the complainant’s “situation”. This the complainant understood to be a reference to her pregnancy. In the course of their discussions, the respondent remarked that the complainant had been ill and would probably be ill again throughout her pregnancy.
The complainant was assured that her work was satisfactory and that, in the respondent’s view, she and a colleague had coped well with a backlog of work at the accounts office. The respondent discussed with the complainant the difficulties that she might have in obtaining employment having regard to her pregnancy. He told her he had to cut down on staff and that more employees, including reception, accommodation and bar staff, would also be let go.
The respondent indicated that he was prepared to provide the complainant with an exit package and a good reference. He told her not to come to work on the following day (Friday) or on the Monday, but to think about the offer. The respondent told the complainant that he had checked all areas of the hotel to see if he could find an alternative position for her but nothing was available.
The complainant telephoned the respondent on the following Tuesday as arranged. He asked her if she had thought about the offer made the previous week. The complainant remarked that she had no choice in the matter, as it appeared that her job was gone. The respondent accepted that to be the position. They agreed to meet in another hotel and the respondent gave the complainant a total of £1,298.44 (€1,648.68), which included payment in lieu of notice, holiday pay and an ex-gratia payment.
On the 20th January, 2001, an advertisement appeared in a newspaper seeking applications for vacancies as a receptionist and accommodation assistant at Blooms Hotel. The complainant saw the advertisement and realised that rather than letting staff go, as had been indicated to her, the hotel was in fact recruiting staff.
The Respondent denied emphatically that the complainant was discriminated against or that her dismissal from her employment was in anyway caused or influenced by her pregnancy or that she was discriminated against in anyway on those grounds or any other grounds. The Court was informed on behalf of the respondent that in July, 2000, Ms. Martina Keane, who was a qualified chartered accountant, took over the management of the accounts office at the hotel. At that point it was apparent that the complainant was not engaged in any of the functions relating to the debtors or creditors ledger, and had no dedicated function and little work to do.
On or about November, 2000, the auditors of the business reported that they had, inter-alia, identified certain inefficiencies in the accounts office. In the report the auditors submitted to the respondent, which listed the various functions being performed within the accounts office, there was no mention of the complainant. This, the respondent submitted, indicated that the functions of the accounts office could be completed without the complainant.
The respondent says that, notwithstanding this report, Ms. Keane decided to delegate duties relating to pay-roll responsibilities to the complainant and arranged for her to participate in a relevant pay-roll course. The respondent acknowledges that the complainant had failed to attend this course because she was suffering from morning sickness. They contend that the reason the second day of the course was cancelled was because, having missed the first day, Ms. Keane was of the view that the second day would be of little value to the complainant.
The respondent says that in early January, 2001, it became apparent that the level of business at the hotel had fallen substantially. By reason thereof, it became apparent to the respondent that any excess staff would have to be let go and it was in this light that the respondent met with the complainant on the 11th January, 2001. In the written submission presented on his behalf, the respondent emphasis that this was the sole reason for the complainant's dismissal. He acknowledged that positions of receptionist and accommodation assistant were subsequently advertised. The respondent further acknowledged that the complainant was not offered alternative employment in either area. It was submitted on behalf of the respondent that Reception duties are of a specialised nature and that the work of an accommodation assistant would have been unsuitable for somebody originally employed for office duties. The respondent further contended that the complainant indicated her satisfaction with the severance payment made to her at the time her employment was terminated and that he was greatly surprised at her subsequent referral of the complaint under the Employment Equality Act.
InWebb v EMO Air Cargo (UK) Ltd  ECR 1-3567and inBrown v Rentokil Ltd  ECR 1-04185, the ECJ held that the dismissal of a woman on grounds of pregnancy is direct discrimination contrary to Directive 76/207. The Act must be interpreted in light of the wording and purpose of the directive so as to achieve the result envisaged by the directive. Therefore, if the complainant was dismissed as a result of her pregnancy she suffered direct discrimination contrary to Section 8 of the Act.
Burden of Proof
The Burden of Proof borne by the parties in this case is regulated by the European Communities (Burden of Proof in gender discrimination cases) Regulations 2001(S.I. No. 337 of 2001). These regulations provide that at regulations 3(1)
- “where in any proceedings facts are established by or on behalf of a person from whom it may be presumed that there has been direct or indirect discrimination in relation to him or her, it shall be for the other persons to prove to the contrary.”
Conclusions of the Court
Dismissal as a fact is not in dispute in this case.
The Court accepts that the complainant’s recollection as to what was said to her by the respondent at their meeting of 11th January, 2001, in accurate in all material respects. The content of their discussions shows that the complainant’s pregnancy was a significant issue in the mind of the respondent. The Court further accepts that the respondent advised the complainant that there were no other vacancies in the hotel and that staff engaged in reception and accommodation duties would also be let go by reason of redundancy. This, as it transpired, was not the case since shortly afterwards the respondent was recruiting staff in both these areas. It is reasonable to infer from this that, even if a redundancy situation existed in the accounts office, the respondent had decided to terminate the complainant’s employment rather than offer her re-deployment elsewhere in the hotel.
Accepting as it does the accuracy of the complainant’s recollection of what was said to her on the 11th January, 2001, the Court is fully satisfied that the complainant has discharged the evidential burden envisaged by Regulation 3(1) of the Burden of Proof Regulations. It is therefore a matter for the respondent to prove that the complainant was not discriminated against.
The respondent did not attend the hearing and could therefore not give evidence. Ms. Keane told the Court that the decision to terminate the complainant’s employment was taken by the respondent personally. She further said that she believed the respondent took the decision because there was a genuine redundancy situation within the hotel.
The solicitor representing the respondent told the Court that on his instructions the reason for the dismissal was that the auditors had identified the complainant as being surplus to the requirements of the hotel. The solicitor also told the Court that his instructions were that the complainant would not have been suitable for either of the vacancies which were subsequently advertised.
This Court is not obliged to apply the rules of evidence with the same strictness as might be expected in a Court of Law and the rule against hearsay, like other rules of evidence, does not automatically apply to this Court. However, if the circumstances are such that the admission of such evidence would result in unfairness or a breach of natural justice it will be disregarded by the Court (see Kiely v Minister for Social Welfare  IR 21).
In the instant case, the respondent did not attend the Court Hearing and was not available for questioning on the reasons given in the submission made on his behalf as to the reasons for the complainant’s dismissal. The respondent had advance notice of complainant’s submission which contained her account of the meeting of 11th January, 2000. Nonetheless, no reason was offered for the respondent’s failure to attend the hearing. The only evidence that could be given regarding the reason for the dismissal was that of Ms. Keane, who on her own acknowledgement was not involved in reaching that decision.
In these circumstances, the Court cannot place any reliance on the testimony of Ms. Keane as to what she understood to be the respondent's motivation in terminating the complainant's employment.
Accordingly, the Court must hold that the respondent had failed to rebut the presumption of discrimination in this case, and the complainant is entitled to succeed.
The Court finds that the complainant was dismissed by reason of her pregnancy. It is settled law that the dismissal of a woman on grounds of pregnancy constitutes direct discrimination on grounds of gender. It follows that the complaint is well founded.
The Court determines that the appropriate form of redress is an award of compensation. The amount of compensation which the Court considers to be fair and reasonable is measured at €15,000. This award is in addition to the amount already paid to the complainant by the respondent. An award in the claimant's favour in that amount is hereby made.
Signed on behalf of the Labour Court
14th November, 2002______________________
Enquiries concerning this Determination should be addressed to Ciaran O'Neill, Court Secretary.