Employment Equality Acts 1998-2907
Equality Officer Decision
Colour’s Hair Team
(Represented by Martin A. Harvey & Company Solicitors)
1.1 This dispute concerns a claim by Ms Sinead Bermingham that she was discriminated against in relation to discriminatory dismissal by Colours Hair Team on the ground of gender in terms of section 6(2) of the Employment Equality Acts, 1998 — 2007 and contrary to section 8 of those Acts.
1.2 The complainant referred her claim of discriminatory dismissal to the Director of the Equality Tribunal on 8 March 2006 under the Employment Equality Acts 1998 and 2004. In accordance with her powers under section 75 of the Acts, the Director then delegated the case to Hugh Lonsdale, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. Submissions were sought and received from the parties, and a hearing was held on 25 February 2008.
2. SUMMARY OF THE COMPLAINANT’S CASE
2,1 The Complaint submits that she started work with the respondent, a hair salon, in February 2005. On 19 January 2006 she advised the manager, Ms K, that she was pregnant. Following this Ms K ignored her, told junior assistants not to talk to her and not to help her, was given separate lunch breaks from her colleagues and some of her clients were booked in with other people.
2.2 The complainant submits that on 7 February 2006 she went to work as normal and was told to go to a nearby hotel where she had a meeting with Ms K and a Director, Ms CC and, without any warnings, she was let go as things were not working out.
2.3 The complainant submits that she was dismissed unfairly as a result of her pregnancy.
3. SUMMARY OF THE RESPONDENT’S CASE
3.1 The respondent rejects the allegations of discrimination on the grounds of gender. They submit that the complainant has a history of disruption and gave details of a number of incidents (I have included a response from the complainant):
• In March 2005 the complainant did not report for work and did not contact the salon management;
The complainant submits that the manager (Ms K) gave her a lift to work and would therefore have been aware of any absence
• In April/May 2005, as a consequence of working late on a local radio station, the complainant became lethargic at work and this led to a deterioration of work and at a meeting at a hotel in May to discuss the situation the complainant became loud and abusive towards Ms K, in a public area of the hotel;
The complainant submits that she worked on Friday nights from 10-12 pm and this did not interfere with her work in the salon. At the meeting the complainant got upset because Ms K made comments about her boyfriend.
• In June 2005 the complainant did not attend for work and did not contact the salon about not attending a one day course for which she had been given two weeks notice;
The complainant submits that the course took place on her usual day off and she in formed Ms K that she had other arrangements.
• In July 2005 the complainant was uncooperative with the manager and other staff. Also, she was verbally abusive to Ms K. The complainant apologised and Ms K said if the respondent was unhappy she could leave at any time;
The complainant submits that she was “down at work” because she felt that her training was being slowed down
• In late July 2005 the complainant was booked on a four day course in Dublin which she cancelled as she wished to go on holiday instead;
The complainant submits that she wanted to attend the course but had booked a holiday on those dates on 9 May 2005.
In July 2005 a client complained about the attitude of the complainant; she ended up crying and was given the colour free of charge; The complainant submits that she had to repeatedly ask the client to remove the co/our from her hairline. She was unaware that the client had been crying or that she had not been charged.
• In September 2005 the complainant had an argument with another member of staff while standing over a client;
The complainant submits that the client complained to Ms K about the other member of staff’s attitude.
• On 4 October 2005 the complainant did not report for work and did not advise the salon, she was out sick for three days and had been working as a DJ on the previous nights;
The complainant submits that she asked her sister to in form the salon that she would be out sick with a back problem but her sister forgot. The complainant also submits that she only worked as a Di on Friday nights and that she could carry out this work as she was sitting down. She returned to work on the Saturday.
• In November 2005 the complainant regularly did not turn up to the collection point in the morning and would cause her colleague to take a detour. This caused several people to be late for work in the salon. The complainant submits that the car driver was often late and agreed to pick her up from home. She was never approached by MS K about being late for work.
• On 19 January 2006 the complainant told Ms K she was pregnant The complainant submits that she was forced to tell Ms K that she was pregnant as she wanted 16 February off for her first scan and Ms K would not give her the day off without knowing the reason
• On 24 January 2006 Ms K informed the complainant of a course in Dublin two weeks in advance and agreed for, and paid for, the complainant’s cousin to travel with her and be her model. The evening before the complainant sent a text to Ms K to state that she could not attend. When Ms K asked the complainant about this the next day she became aggressive and verbally abusive. Ms K asked two directors, Ms CC and Ms LC, to join her. The complainant was issued with a verbal warning, in relation to her verbal abuse of Ms K and her attitude towards her job. The complainant was told there would have to be an improvement in her attitude and that such incidents were unacceptable. The complainant submits that when she was approached about her withdrawal from the course she advised Ms K that she was suffering from hypermessis and was afraid of travelling on the train. Ms K then became aggressive and the complainant felt afraid and threatened. The complainant felt attacked when the two directors joined, she was also told that that “pregnancy is not a sickness’
On 27 January 2006 the complainant did not come to work and did not call in. Her sister called at 11am.
The complainant submits that she did not want to go to work after the events of 24 January 2006 and it was after this that she felt excluded and was given different lunch breaks from co/leagues.
On 28 January 2005 at a team meeting the complainant prompted a junior member of staff to challenge Ms K. After the meeting Ms K and Ms CC spoke to the complainant on her own as they had heard that she had applied for a position in another salon. Ms K felt this confirmed the diminishing interest and lack of commitment to the complainant’s career with the respondent.
The complainant submits that the junior member of staff asked her if she knew the answer to a question put to Ms K, the complainant didn’t and suggested that she ask Ms K herself When asked by Ms K, Ms CC and Mc LC the complainant advised them that she had thought about moving to another sa/on but had decided against it. She felt threatened at this meeting, after being cornered by three people and being asked lots of questions about the job and her pregnancy.
• On 1 & 2 February 2006 the complainant undermined Ms K by criticizing her and what she was doing in the studio to other staff, she also stated that the salon was not a pleasant place to work. The complainant also failed to complete the normal salon cleaning duties.
The complainant denies these allegations.
• On 4 February 2006 the complainant openly criticized Ms K in front of a client by stating that she was being over-charged. She also informed another member of staff that she was going to “piss Karen off” that day. Later that day two sets of hot taps were found running.
The complainant denies these allegations.
3.2 The respondent submits that the complainant was spoken to on a number of occasions and was given an opportunity to rectify the issues and behaviours. However, because of the history of disruption on 6 February 2006 Ms K and Ms CC met the complainant to inform her that she was being dismissed because of a lack of reliability, for disrupting the team and affecting morale, hostility to salon management and clients, and for a Jack of interest in her job and poor performance..
3.3 The respondent further submits that they have a positive attitude to staff and since opening in 2004 they have had three members of staff who have been pregnant and also five members of staff with children. They have accommodated all of these women, by giving them time off when necessary and re-arranging rosters to slut their needs. Three employees gave evidence at the hearing that the respondent had treated them well during their pregnancy.
4. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The complainant’s case is that she was discriminated against in relation to her dismissal by Colours Hair Team on the grounds of gender in terms of Section 6 (2) (g) of the Employment Equality Acts, 1998 - 2007, contrary to Section 8 of that Act. The European Court of Justice in Dekker v Stichting Vormingscentrum Voor Jong Voiwassen (VJV Centrum) Plus1 found that pregnancy is a uniquely female condition and that where a woman experiences unfavourable treatment on grounds of pregnancy such treatment constitutes direct discrimination on the grounds of gender within the meaning of the Equal Treatment Directive2 even though there may be no male comparator, and this is set out in section 18(1)(b) of the Employment Equality Acts, 1998-2007. In making my decision I have taken into account all of the evidence, both written and oral, made to me by the parties.
4.2 The respondent gave details of nine incidents between March and November 2005. Three relate to unreported absences and one to being late for a lift. Three relate to incidents in the salon and on one occasion in July it was alleged that the complainant was verbally abusive. One incident related to non-attendance on a course. The other incident was when the manager spoke to the complainant in a hotel and they had an argument. Despite the gravity of two incidents and the respondent’s claims to have issued a number of verbal warnings, none of them are recorded and no formal disciplinary action was taken. The last incident of any gravity took place in July 2005. However, it is also clear that the complainant did not always communicate with her employer in the way that would be expected of an employee in relation to absence reporting and attending courses.
4.3 I must now look at the incidents after the respondent knew that the complainant was pregnant on 19 January 2006. The complainant was issued with a verbal warning on 24 January 2006. Four days later there was an informal meeting and this ended in an argument. There are further allegations of the complainant’s behaviour in the salon over the next few days. This led to a meeting on 7 February 2006 when the complainant was dismissed.
4.4 The respondent’s case is that the complainant had a history of behaviour that warranted her dismissal and I accept their view that some of the incidents may have warranted some form of disciplinary action. The complainant accepts that some of incidents occurred but states that she was not informed they were disciplinary issues. Also there is a conflict of evidence between the parties over some of the incidents. Article 10(2) of EU Directive 92/85/EEC3 states that where workers are dismissed during pregnancy the employer must cite duly substantiated grounds in writing for the dismissal and the need to take this approach was put forward by the Labour Court in A Company and A Worker, ED/01/1(4) “Once an employee has shown that she has been dismissed or discriminated against, under the Burden of Proof Directive, the onus switches to the employer to show that such dismissal or discrimination 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 beset out in writing.” In this case the respondent had no written disciplinary procedures and despite what they described as a history of disruption the complainant was issued with only one verbal warning and received no warnings in writing. Furthermore, the complainant was not given notice of the meetings with the manager and directors. The meeting on 7 February 2006 was the only meeting which she was advised was related to disciplinary matters and she was dismissed. She was given no opportunity to prepare a response to the accusations, given no opportunity to be accompanied to meetings and was given no opportunity to rectify her behaviour.
4.5 Given that the complainant was dismissed less than one month after she informed the respondent that she was pregnant I find that she has demonstrated a prima facie of discrimination, under 85A of the Employment Equality Acts. Therefore, the burden of proof shifts to the respondent to prove the contrary. On the balance of evidence given by theparties I accept that the respondent may have had reason to invoke disciplinary measures but they did not use any form of disciplinary procedure, other than one verbal warning, and they put nothing in writing to the complainant before dismissing the complainant. In these circumstances I find that the respondent has failed to demonstrate that there were exceptional circumstances not associated with the complainant’s pregnancy for her dismissal.
On the basis of the foregoing I find that the respondent did discriminate against the complainant on the grounds of gender in terms of section 6(2)(a) and discriminatory dismissal took place contrary to section 8 of the Employment Equality Acts, 1998 - 2007. In accordance with section 82 of those acts I award the complainant €16,000 in compensation for the discriminatory treatment suffered. This figure represents compensation for infringement of her rights under equality legislation in relation to discrimination and does not include any element relating to remuneration, and is therefore not taxable.
18 July 2008
1 Dekker V Stichting Vorm’ngscentrum Voor long Voiwassen (VJV Centrum) Plus EC) C-17//88  ECR1-3941
2 Council Directive 2002/731EC of 23 September 2002 amending Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards to access to employment, vocational training and promotion, and working conditions.
3 Council Directive 92/85/EEC of 19 October 1992 on the Introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breast feeding.
4 A Company and A Worker Labour Court ED/01/1, Det No EEDO16