SECTION 77, EMPLOYMENT EQUALITY ACT, 1998
ASSICO ASSEMBLY LIMITED
(REPRESENTED BY CLARKE JEFFERS & CO. SOLICITORS)
- AND -
(REPRESENTED BY H.G. DONNELLY & SON SOLICITORS)
Chairman: Mr Flood
Employer Member: Mr Pierce
Worker Member: Mr O'Neill
1. Alleged unfair dismissal under S77 of the Employment Equality Act, 1998.
2. The Complainant was employed by the Respondent as a General Operative from the 30th of October, 2001, until the 7th of January, 2002, when she was dismissed. She received one week's pay in lieu of notice. The Complainant claims she was dismissed because she had informed the Respondent she was pregnant. The Respondent rejects the claim stating that the dismissal occurred due to the Complainants poor work performance.
The Complainant referred a complaint to the Labour Court on the 24th of June, 2002, in accordance with Section 77 of the Employment Equality Act, 1998. A Labour Court hearing took place on the 15th of November, 2002.
The claimant submitted that the respondent, in dismissing her while she was pregnant in breach of Section 77 (2) (a) of the Employment Equality Act, 1998, (the Act) discriminated against her on the grounds of her gender and family status in breach of Section 6(1) and Section 6(2) (a) and (c) and Sections 8 and 22 of the Act.
The Respondent submitted to the Court that of the three provisions of the Act relied upon by the claimant only one, Section 8, provides a basis for complaint to the Court.
The respondent further submitted that while the complainant had alleged discrimination on two grounds, gender and family status, that the complaint in respect of family status is misconceived. It was further argued that there was nothing in the complainant’s submission made to the Court to suggest the complainant was at the time of her impugned dismissal, a parent, in loco parentis or a resident primary carer or otherwise in any way responsible for the well being of any other person within the meaning of the Act.
The complainant claimed that she was employed by the Company on the 30th October, 2001, and was dismissed on the 11th January, 2002. She was not provided with a contract of employment or a statement of terms and conditions of employment.
On the 7th January, she informed the managing director that she was pregnant. She claims that at that stage the manager indicated to her that certain people would have to be let go, due to a downturn in business.
The complainant was surprised as she had only been hired approximately 9 weeks before that date and had not been aware of any downturn in work, from what she had seen in the Company.
Later that same afternoon the manager informed her that she was being let go, not because of any issues with her work performance, but due to a downturn in business.
The complainant was the only person let go and was shocked that her employment had been terminated as the Company had only recently employed her and seemed as busy as ever, and particularly as she had not been the last person to be engaged by the Company.
Based on the factors above the complainant concluded that this was not a genuine redundancy issue, but that her employment had been terminated as a result of her pregnancy.
Subsequently, the complainant was provided with a reference for the Department of Social Welfare in January, 2002, which stated that she was “a very good worker, pleasant and keen to learn any job”. It further provided that her employment had been terminated due to a downturn in work.
Around mid January she learned that another individual had been hired to perform the work she had been doing before her dismissal. This added to her belief that her employment had been terminated due to her pregnancy.
The complainant was surprised when the respondent, in July, 2002, in a response to the complainant’s complaint, indicated that she had been dismissed as a result of her poor work performance and absenteeism. This was the first time she was made aware that this was the Company position.
The complainant states that at no time during her employment with the respondent were any issues raised with her regarding her performance or indeed any absences from work.
The case law of the European Court of Justice is quite clear. InDekker v Stichting Vormingscrentrum voor Jong Volwassen ECJ 177/88[1990 E.C.R. 1-3941]. The Court of Justice held that unfavorable treatment because of pregnancy is by definition direct discrimination on the grounds of sex.
InBrowne v Rentokil [1998 ECRI/4185]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.
The Company recruited the complainant on a 6-month probationary period, with a performance review after three months. The complainant at that time was approximately 18 years of age and the respondent understood that this was her first full-time position.
From the outset there were problems with the complainant's work. Omissions in work assembled resulted in the Company having to recall products from the customer. Notwithstanding the serious nature of the incident, the Company, conscious of her age, afforded her, a second chance. However, a note of this incident was placed on the complainants personnel file.
Subsequently, on the 6th December, 2001, she was again addressed by the personnel manager with respect to the poor quality of her work. On this occasion, the complainant was reprimanded and again this incident was noted on her personnel file. On the 8th of December, the complainant was reprimanded for using her mobile phone in the course of her work, and a note was again put on record.
The poor quality of the complainant's work was the subject of consideration by her colleagues and on one occasion the manager was approached by a co-worker of the complainant in respect of her poor quality of work.
Apart from her poor work performance, the complainant proved herself to be unreliable. Over the course of her first seven weeks of her employment with the respondent she missed three and a half days work. These absences often occurred in circumstances where no notice or explanation was offered.
By reason of the matters outlined, the respondent took the decision to terminate the employment of the complainant. This decision, by the managing director of the
Company was taken in or around December, 2001. At the time the decision was made, the Company was totally unaware that the respondent was or might be pregnant.
The Company did not wish to notify the complainant of the decision to terminate her employment immediately prior to the Christmas vacation and decided to hold off until the factory was re-opened on Wednesday, 2nd of January. However, the complainant did not return to work until the 7th of January. During this three day absence the complainant made no attempt to contact the respondent to indicate she would be absent or to offer an explanation for her absence.
On the morning of the 7th January, the complainant returned to work and informed the manager that she was pregnant. The manager had, immediately before the arrival of the complainant, been speaking to the bookkeeper with the purpose of arranging the relevant documentation with respect to the complainant’s dismissal.
The decision of the respondent to dismiss the complainant predated the knowledge on the part of the respondent that the complainant was pregnant and was unrelated to the same.
The fact of her dismissal was notified to her early in the morning, at the first discussion, and not later in the day as stated in the submission of the complainant. On being informed of this decision, the complainant stated that she was not surprised, and had been expecting it.
The Company accepted that it had informed the complainant that the dismissal arose from a downturn in the Company’s fortunes. However, the Company argued that this was not the real reason but it was offered to the complainant in order not to demoralise her, given that this was her first job.
The Company also accepted that it did produce a reference for the purpose of Social Welfare entitlement of the complainant but did not make any reference to the difficulties encountered by the employer with the complainant with the quality of her work and overall attendance.
It is the Company’s contention that the complainant was dismissed due to her poor work performance and attendance rate in the workplace. The decision was made to dismiss her prior to the Company being aware of her pregnancy.
The Company stated that it did not and never has operated a policy of discrimination on grounds of gender and in particular did not discriminate on the ground of pregnancy. That fact is evident by its treatment of other staff members.
The Company in its submission has accepted that it gave a number of different reasons for the termination of the complainant’s employment. Initially, it stated it was because of the downturn in business, subsequently it claimed that it was based on her performance and poor attendance. The Company accepts that it gave the reason of downturn in business to her initially and subsequently to the Social Welfare but argues that it was to reduce the impact on the claimant both because of her age and because it
was her first employment.
On the issue of work performance there is conflicting evidence presented by the parties. The Company states that the complainant’s work was being monitored in order to prevent a reoccurrence of problems with the work she had undertaken but confirms that she was only made aware of one incident and in that case the complainant was not personally reprimanded but a general comment was made to the group in which she worked.
In relation to the claim that her attendance record was bad, the complainant argued that she was only missing one and a half days in the period up to Christmas. She claimed on these occasions either her mother or herself had rung the Company, a claim the Company refuted. Further conflicting evidence was given in relation to events on the day of the dismissal.
The Company argued that the manager had been in discussion with the bookkeeper with a view to terminating the complainant’s employment when the complainant came into her office and informed her of her pregnancy. The Company is also adamant that she was told of her dismissal at that stage. The claimant is equally adamant that she was told that some people would be let go but that she was not informed that she would be one of them until later that same day.
The Company called witnesses before the Court who indicated that there had been conversations with the managing director in relation to the complainant and her work performance. They were of the view that a decision had been made to dismiss her but due to pressure of work before Christmas and the fact that it was Christmas, the decision had not been implemented.
The complainant, on the other hand, was adamant that she was unaware that her performance was such that she was likely to be dismissed and at no stage was this conveyed to her. She believed that she was let go as a direct result of her pregnancy as others who had been employed after her remained in employment.
The Court is satisfied that the complainant's work performance was inadequate in a number of areas. However, the Court is not satisfied that the serious consequences of this, as viewed by the Company, were conveyed to the complainant at any stage of her employment.
The Company claimed that on at least three occasions the claimant had warnings written into her personnel file. During the course of the hearing, it became clear that no such files existed. The only record was a notebook of comments kept by the managing director.
The claimant’s absence record was initially argued by the Company to have been extremely bad but subsequently turned out to be at most two days during the period in question. It was argued by the complainant that on each of these occasions either her mother or herself made contact with the Company.
The Court is faced with conflicting evidence in relation to the day of the complainant’s dismissal as to whether she was informed in the morning or the afternoon of this.
It is clear that if a decision had been made and conveyed to the complainant that due to her work performance she was being dismissed, before the Company became aware of her pregnancy, then the current claim could not be brought before the Court.
However, as presented to the Court and as accepted by the parties, the claimant informed the Company of her pregnancy before it was conveyed to her that she was being dismissed.
The Court, while prepared to accept that the Company was unhappy with the work performance of the claimant, can find no evidence that a firm decision had been taken to dismiss her or more importantly that a particular day had been nominated for her dismissal.
In relation to her work performance, the Court is of the view that she had only been employed for a few weeks and as this was her first job, it was likely that the Company would have to give her extra support before deciding to dismiss her within a short space of time.
Even if the Court was to accept that discussion had taken place among management in relation to her work performance and her possible dismissal it is quite clear that none of this was conveyed to the claimant. Equally, it is clear that no date was decided on for this termination of her employment.
The Company argues that it was in the process of preparing these papers when they were informed of her pregnancy.
The Court finds it strange that the Company, having made a decision to let her go after Christmas, made no attempt to prepare the papers immediately after Christmas particularly as she went absent for three days without notice after Christmas. This gave management ample opportunity to prepare her dismissal papers to be implemented on her return.
The Court is satisfied that the Company had not made a firm decision on a day to implement her dismissal.
The Court, therefore, finds that the Company has not discharged the burden on it to show that the claimant’s dismissal was for exceptional reasons unconnected with her pregnancy.
The claimant has been discriminated against by the Respondent under Section 77(1) (a) of the Act, in breach of Sections 6 (1) and 8 (6) (c) of the Act. The claimant was discriminated against on the gender ground under Section 6 (2) (a) of the Act but not on the family status ground under Section 6 (2) (c) of the Act . The Court, pursuant to its powers under section 82 of the Act, awards the claimant compensation in the sum of €9,000 in full and final settlement of her claim.
Signed on behalf of the Labour Court
21st January, 2003______________________
Enquiries concerning this Determination should be addressed to Gerardine Buckley, Court Secretary.