THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
DEC - E2010 - 031
(represented by Patricia Wilson B.L. instructed by James M. Sweeney Solicitors)
Nolans MPC Ltd.
(represented by Vanessa Fitzpatrick, Employment and Safety Consultants.)
File reference: EE/2006/437
Date of issue: 16th March 2010
Keywords: Employment Equality Act, Gender, Discriminatory dismissal, Access to Employment, Pregnancy, No prima facie case
1.1. The case concerns a claim by Ms Jelene Kurelase against Nolans MPC Ltd. Her claim is that she was discriminated against regarding access to employment and that she was discriminatorily dismissed on the grounds of gender contrary to 6(2) (a) of the Employment Equality Acts 1998 - 2008 [hereinafter referred to as 'the Acts'].
1.2. The complainant referred a complaint under the Acts to the Director of the Equality Tribunal on the 13th November 2006. Submissions were received from the complainant and respondent on 17th august 2009 and 14th October 2009 respectively. On 7th September 2009, in accordance with her powers under Section 75 of the Acts, the Director delegated the case to me, Orlaith Mannion, 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. On this date, my investigation commenced. Submissions were received from both parties and a joint hearing was held on 27th January 2010 as required by Section 79(1) of the Acts.
Summary of the complainant's case
2.1 The complainant commenced employment with Nolans MPC on 16th January 2006 as a cleaner. This mainly entailed the internal cleaning of new buildings for display to potential buyers. On 2nd November 2006, Ms Kurelase submits that she attended a meeting with Mr Frank Nolan (co-director of the respondent company), her supervisor (who was also her husband) and three others who were on the cleaning team. At this meeting, Mr Nolan explained (using Mr Kurelase as an interpreter) that the respondent company had no new contracts for internal cleaning. Therefore, all four cleaners would be asked to do external cleaning i.e. powerwashing brickwork. She informed Mr Nolan that she would not be able to do this as the chemicals would have a negative impact on her as she was pregnant. She contends that Mr Nolan purported not to know she was pregnant. The complainant submits that he should have been aware that she was pregnant as it was visible. Ms Kurelase submits that, as he ought to have known she was pregnant, that he ought to have known that she could not deal with hazardous substances. Later that day, Mr Nolan asked her husband when their child was due to be born and Mr Kurelase informed him that the due date was approximately Christmas week i.e. in approximately 7 weeks.
2.2 On the following Tuesday (7th November 2006), Mr David Nolan, an other manager in Nolans MPC Ltd., arrived on the site where the complainant was working. She submits that she was eating her lunch in the back of a van when Mr Nolan approached her. She submits that he told that there was no more work for her but she could return to work after her baby was born. The complainant points out that she was still medically fit to work albeit not close to hazardous chemicals. She submits that she was thereby dismissed but she never received this dismissal in writing.
2.3 When Ms Kurelase's solicitor contacted the respondent on 9th November 2006, it is the complainant's contention that Nolans MPC then said that she was not dismissed and that she could resume employment if alternative work was available. The complainant contends that this position was adopted post-facto by the Respondent for the sole purpose of evading liability. The complainant submits that should the Tribunal accept the respondent's position that she was not formally dismissed, then the complainant asks the Tribunal to accept that she could not work for the company again i.e. after this treatment she was entitled to claim she was constructively dismissed.
2.4 The complainant submits that her dismissal from employment was directly linked to her pregnancy. She point out that he entire period of pregnancy and maternity leave constitutes a special, protected period as outlined in the European Court of Justice Decisions in Webb v EMO Air Cargo (UK) Ltd Brown v Rentokil Ltd and Dekker v Stichting Vormingscentrum .
2.5 After the intervention of her solicitor, the complainant concedes that she was paid up to 20th December 2006, from which date she went on maternity leave.
2.6 The complainant submits that although she did not tell any of the senior management that she was expecting a baby until 33 weeks pregnant, her supervisor (her husband) was aware of the situation. Therefore, it is the complainant's view that it was his role to inform senior management. According to the complainant, Nolans MPC Ltd is vicariously liable as Mr Kurelase is an agent of the respondent.
Summary of the respondent's case
3.1 It is the respondent's contention that at the meeting of 2nd November 2006 Mr Frank Nolan informed Ms Kurelase that Nolans MPC Ltd did not have enough new internal cleaning contracts so that she would be given different duties. The three others on this team were also similarly affected. Mr Nolan submits that he said at this meeting that additional contracts may be available in the New Year. Ms Kurelase rejected what he suggested as the alternative suitable employment as it would involve handling hazardous chemicals and power-washing is a strenuous activity. The respondent submits that it was only at this point that they realised she was pregnant. Therefore, Nolans MPC offered Ms Kurelase Health and Safety Leave payment up to the commencement of her maternity leave. The respondent submits the payslips as evidence. Nolans MPC Ltd contends that neither her husband nor Ms Kurelase had previously informed them that she was expecting a baby until she was 33 weeks pregnant. The respondent rejects the vicarious liability arguments.
3.2 Mr Nolan submits that he would have little direct contact with the complainant and that he genuinely did not notice that she was pregnant. It was wintertime and, therefore, Ms Kurelase, tended to wear baggy fleece jackets. All employees working on sites were required to wear high vis. vests over their clothes.
3.3 The respondent denies that the conversation with Mr David Nolan of 7th November did not occur. Ms Kurelase has poor English and her husband acted as an interpreter at all times. Her husband was not present. Therefore Mr Nolan would not have been able to communicate with her. The respondent submits that as Mr David Nolan is not a Director of the company, he would not be involved in 'hiring and firing'. If somebody was to be let go, the respondent submits that they would be invited to a meeting with one or both of the Directors and the reasons explained.
3.4 Up to this time, the respondent states that Ms Kurelase was an exemplary employee. There were no disciplinary issues and they would have been delighted for her to 'stay on their books' during her maternity leave. They submit she was not dismissed nor was she entitled to claim she was constructively dismissed. According to the respondent, she simply stopped coming into work and on 9th November her solicitor sent a letter to Nolans MPC Ltd stating that she had lodged a case with the Equality Tribunal. The respondent continued to pay her until 20th December. The respondent submits that she should have followed the grievance procedure outlined in her terms of employment (which she signed on 18th January 2006):
If any employee has a query or problem with their working relationships/conditions, we would ask that they come to discuss same with management and we will endeavour to sort out any difficulties that they may be having. We would like everyone who is employed by our Company to be happy in their employment with us.
3.5 Her husband resigned by text on 11th November. Ms Kurelase requested her P45 from Nolans MPC Ltd. and a meeting was set up for 20th January 2007. At that meeting Ms Kurelase signed a statement and her husband witnessed it:
I, Jelene Kurelase, have requested my P45 from Nolans MPC Ltd. I have been made to understand that there is a position for me following my Maternity Leave, however after careful consideration I have decided to decline this offer and pursue other avenues. Nolans MPC have paid me up to my maternity leave along with my holiday pay and one week's pay in lieu of notice. I have been given 24 hours to ensure I give this decision careful and weighted consideration and am happy to sign below.
The respondent submits that she had the benefit of legal advice at all material times.
Conclusions of the Equality Officer
4.1. Section 6(1) of the Act provides that discrimination shall be taken to occur where on any of the discriminatory grounds mentioned in subsection (2) one person is treated less favourably than another is, has been or would be treated. The discriminatory ground in this case is gender. Therefore, the issue for me to decide is whether the complainant suffered discriminatory treatment in relation to access of employment and whether she was discriminatorily dismissed on the grounds of gender. In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties.
4.2 In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to Section 85A of the Act. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of 'sufficient significance' before a prima facie case is established and the burden of proof shifts to the respondent.
4.3 It is common case that at a meeting of 2nd November 2006, Mr Frank Nolan (assisted by Mr Kurelase as interpreter) told the complainant and three others that their duties would change due to a downturn in business (Paragraph 2.1 and 3.1). When Ms Kurelase understandably declined to undertake the alternative duties because of her advanced state of pregnancy, the respondent put her on health and safety leave. She continued to be paid until 20th December. I accept the respondent's contention that they had no other suitable alternative work for her. If they had, it would have been in their economic interest to have an employee employed in a productive capacity for them since Nolans MPC Ltd were continuing to pay her. Therefore the complainant has failed to establish a prima facie case of discriminatory treatment on the grounds of gender.
4.4 Up until 2nd November, the complainant has not alleged she was asked to do any work unsuitable to somebody who was pregnant. This may have been because her husband was her supervisor and was aware that she was pregnant. I prefer the respondent's evidence regarding the alleged incident on 7th November (Paragraphs 2.2 and 3.1). From the Hearing, it was clear that Ms Kurelase's standard of English is poor. A Russian interpreter was required for the Hearing. Her husband was the conduit of communication between her and the company and he was not present on 7th November. Mr David Nolan was not a Director of the company and I accept that his role in this company did not include terminating employees' employment. I am satisfied that a formal dismissal did not take place. However, the definition of 'dismissal' in the Act incorporates constructive dismissal:
"Dismissal" includes the termination of a contract of employment by the employee (whether prior notice of termination was or was not given to the employer) in circumstances in which, because of the conduct of the employer, the employee would have been entitled to terminate the contract without giving such notice, or it would have been reasonable for the employee to do so, and "dismissed" shall be construed accordingly.
I do not find that the conduct of the respondent such that the complainant can reasonably regard herself as dismissed. The respondent did not have enough internal cleaning work for Ms Kurelase and three others. Nolans MPC Ltd offered them alternative duties. It was after this offer was made that the senior management of the respondent was informed that Ms Kurelase was advanced in her pregnancy. As the respondent could not offer suitable alternative duties, she was put on health and safety leave until the commencement of her maternity leave. The complainant signed a statement confirming this and that there would be position for her following her Maternity Leave. Therefore I find the complainant has failed to establish a prima facie case of discriminatory dismissal.
I have concluded my investigation of Ms. Jelene Kurelase complaint. Based on all of the foregoing, I find, pursuant to Section 79(6) of the Act, that
(i)the complainant has failed to establish the facts from which it may be presumed that the respondent discriminated against her on the grounds of gender in relation to access to employment
(ii) the complainant has failed to establish the facts from which it may be presumed that she was discriminatorily dismissed on the grounds of gender.
Therefore I find against the complainant.
16th March 2010