FULL RECOMMENDATION
SECTION 77, EMPLOYMENT EQUALITY ACT, 1998 PARTIES : WINSTON'S JEWELLERS (REPRESENTED BY BRIAN D. O'BRIEN & CO) - AND - MS ANNE MASON (REPRESENTED BY THE EQUALITY AUTHORITY) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Carberry Worker Member: Ms Ni Mhurchu |
1. Alleged unfair dismissal under Section 77 of The Employment Equality Act, 1998
BACKGROUND:
2. The complainant referred her case to the Labour Court on the 21st of February, 2002. A Labour Court hearing took place on the 5th of December, 2002. The following is the Court's determination:
DETERMINATION:
The complainant alleges that she was discriminated against because she was pregnant. The discrimination took the form of dismissal from her employment.
The complainant claims she was dismissed from her employment by reason of her pregnancy contrary to sections 6 and 8 of the Employment Act, 1998 on the grounds that she was treated less favourably than a man by reason of her gender. It is submitted that the employer contravened section 8(6) of the Act in dismissing the complainant and section 8(1) in discriminating against her.
Summary of Complainant’s Case:
The complainant commenced employment as a sales assistant with the respondent on the 16th September, 2000. During the last week in May, 2001, she advised her employer she was pregnant. Her maternity leave was due to commence on the 17th September, 2001. She agreed with her employer to return four weeks early from maternity leave on the 17th December, 2001.The early return was intended to facilitate her employer as the Christmas period was a particularly busy time for business.
On Monday 20th August, 2001, the complainant went to the Plaza Clinic and was seen by a doctor who diagnosed sciatica and certified her unfit for work for one week. On the following Monday, the complainant again attended the Plaza Clinic and was seen by another doctor who certified her unfit for work for a further week. After this visit to the doctor the complainant informed her brother, Mr. David Mason, who was manager of Winston’s Jewellers Shop that she would not be in work that week. She also advised she had a second doctor’s certificate to cover her absence for that week.
On Friday 31st August, 2001, while still on sick leave which was pregnancy related, the complainant received a registered letter dated 28th August, 2001, from her employer containing her P45 and advising that ‘her services were no longer required due to increased competition and a slowdown in business’.
The complainant alleges that there were never any discussions between her employer and herself regarding the need to reduce the number of staff employed. Neither was she was ever given any indication that business had slowed down to the extent that it warranted staff reductions. She claims the respondent knew she was returning early from maternity leave to work the Christmas period and the respondent was pleased with this.
The complainant alleged that, following her dismissal, the respondent’s sister started working in the shop.
Summary of the Respondent's Case
The respondent is the owner of Winston’s Jewellers Shop located in the village of Swords. According to the respondent the complainant began working in Winston’s on the 6th September 2000. She worked two days a week, either Monday and Tuesday or Friday and Saturday. Her responsibilities included sales, shop keeping and lodgment of the intake of monies with the bank. The working relationship was at all times amiable.
Prior to May, 2001, the respondent's business required two employees with the occasional assistance of a family member.
During the latter part of May, 2001, the complainant, in conversation with the respondent, advised that she was pregnant.
Also in May, 2001, a new shopping centre, The Pavilions, opened approximately 500 meters from the main street in Swords. This new shopping centre contained three jewellery shops. The respondent claims that from the outset these new competitors impacted severely on his business.
The respondent alleges that from May, 2001, he did from time to time discuss the downturn in business with the complainant. Further, the respondent contends that the complainant was aware that business had fallen off. This was evident from the amounts lodged in the bank.
On August 8th, 2001, the complainant filled out a Maternity Benefit Form in order to claim Social Welfare Payments for the period 17th September, 2001, to the 17th December, 2001.
The respondent insists that he never saw the above form neither did he sign it. Additionally, he alleges that he did not discuss with the complainant her intention to forfeit her option of availing of four weeks' unpaid leave after the 17th December, 2001. The respondent was not aware that the complainant wanted to work during the Christmas period.
The respondent contends that when the complainant went absent from work on the 20th August, 2001, he was in discussion with his accountant regarding the ongoing financial state of the business. The Court was supplied with a letter both from the respondent's Accountants and their bankers confirming that at this time the Company's financial situation was indeed perilous.
Some days later, the complainant’s mother telephoned the respondent and informed him the complainant would not be returning to work. The Respondent states that at this time he had decided to make the complainant redundant. The respondent contends that it was abundantly clear that the complainant understood the circumstances of redundancy. The respondent took advice on the matter from his accountant who drafted a letter of termination by reason of the slowdown in the business, which was signed by the respondent and sent to the complainant (with her P45) on the 28th August, 2001.
There was no response from the complainant to this letter. The complainant subsequently made a claim under the Employment Equality Act, 1998, alleging discrimination on the grounds of gender.
The Law
In support of her claim, the complainant cited the case ofDekker v Stichting Vormingscrentrum voor Jong Volwassen ECJ 177/88[1990 E.C.R. 1-3941]. The Court of Justice in this case held that unfavourable treatment because of pregnancy is by definition direct discrimination on the grounds of sex.
The complainant also citedBrowne v Rentokil [1998 ECRI/4185]in which the European Court of Justice held that the entire period of pregnancy and maternity leave is a special protected period during which both the Equal Treatment Directive 76/207 and the Pregnancy Directive 92/85 prohibit pregnancy related dismissal on grounds of equality. These decisions, and Directive 92/85, 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.
The Court accepts that contention and accepts that dismissal during maternity leave and pregnancy may constitute a breach of both the Employment Equality Act, 1998 and The Maternity Protection Act, 1994.
Burden of Proof
For an allegation of discrimination to be upheld under the Employment Equality Act, 1998, the complainant must show prima facie evidence of the discrimination. Once a prima facie case 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"
In Southern Health Board v Mitchell AEE/99/8, the Court considered the application of Article 4 of the Directive and concluded as follows:
"[A] complainant 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."
Under the European Union (Burden of Proof in Gender Discriminations Cases) Regulations 2001, once an employee has shown that she has been dismissed or discriminated against while pregnant the onus switches to the employer to show that such dismissal or discrimination was justified. Where the employee is dismissed while pregnant or on maternity leave, both legislation and case law state 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 Court is satisfied that the complainant has made out a prima facie case of discrimination and that the burden of proof has been shifted to the employer in this case.
The question the Court must answer is whether in all probability the complainant was dismissed due to her pregnancy, or whether there were exceptional circumstances justifying her dismissal.
Conclusions of the Court
The Court was supplied with financial details of the Company for the year ending 30th June, 2002, together with a copy of a letter from the Company’s auditors and a letter from their bank indicating the financial circumstances of the Company. Having carefully examined the situation which pertained in the Company at the time the alleged discrimination occurred, the Court is satisfied that the financial difficulties caused by the increase in local competition from May, 2001, warranted action by the employer to ensure the continued viability of the Company.
In such circumstances, a reduction in staff numbers was justified. As the complainant was the shortest serving employee, the Court is satisfied that the termination of her employment as notified to her in writing on 31st August, 2001, was due to the existence of a genuine redundancy situation. The Court is satisfied that the facts of redundancy are not altered by the employment of the employer’s sister on a temporary basis or the opening of a new shop in Balbriggan on 3rd October, 2002, over one year later.
Taking the evidence into account, the Court accepts that the respondent decided to terminate the complainant’s employment when faced with a genuine need to reduce costs. However, the Court is of the view that the manner in which her employment was terminated did not reflect the amiable working relationship which existed between the parties, and was devoid of any consideration of the complainant’s personal circumstances. It could have been handled differently.
Determination
The Court is satisfied that the termination of the complainant’s employment was due to circumstances unconnected with her pregnancy and that those circumstances were notified to her in writing.
The Court, therefore, determines that the complainant’s termination of employment was not connected with her pregnant condition and was not in contravention of Equal Treatment Directive 76/207 and contrary to Section 6 and 8 of the Employment Equality Act, 1998. Accordingly, the Court dismisses the claim.
Signed on behalf of the Labour Court
Caroline Jenkinson
20th January, 2003______________________
CONDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran O'Neill, Court Secretary.