THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2011 - 070
(Represented by Finn & Doyle Solicitors)
(Represented by Patrick McCarthy & Co. Solicitors)
Date of issue: 14 April, 2011 File reference: EE/2008/379
Headnotes: Employment Equality Acts, 1998-2008 - gender - pregnancy- discriminatory dismissal - burden of proof.
This dispute involves a claim by a complainant that her employer discriminatorily dismissed her on grounds of gender contrary to Section 8 ( 6 ) ( c ) of the Employment Equality Acts 1998-2008.
2.1 The complainant states that she was interviewed for the position of receptionist/accounts assistant with the respondent company and was informed following interview that she was successful and was offered the post. She commenced employment on 24 September, 2007. The complainant was of the view that she was on a one month trial basis. She felt that she was performing well in the position. The complainant states that she informed her manager, Ms. G of her pregnancy in early March 2008. She states that two weeks later, she was called into the office by Ms. G and was informed by Ms. G that she was giving her a six month review. Ms. G stated that she was unhappy with the complainant and was giving her two weeks notice of termination of employment. The complainant contends that she was dismissed because of her pregnancy and submits that this is unlawful on grounds of gender contrary to the provisions of the Employment equality Acts, 1998 - 2008.
2.2 The complainant referred a complaint under the Employment Equality Acts to the Equality Tribunal on 12 June, 2008. In accordance with his powers under the Acts, the Director delegated the complaint to the undersigned - Valerie Murtagh, Equality Officer, for investigation, decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. My investigation of the complaint commenced on 22 September, 2010 the date the complaint was delegated to me. Submissions were received on behalf of both parties. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on 8 March, 2011.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 The complainant was employed by the respondent as a receptionist/accounts assistant from 24 September 2007 until 11 April 2008. She states that she was required to work Tuesday - Saturday 9 am until 5.30 pm. She was of the view that she was on a 1 month trial basis and felt she was performing well in the job. In relation to training, she states that Ms. G, her manager and Financial Controller within the company allocated 1 hour with her on the first morning to go through the computer system regarding the accounts. She states that she would write down queries on a sello note and bring it to Ms. G's attention at the end of the day as Ms. G was very busy during the day. The complainant states that Ms. G complemented her several times on her computer skills. She admitted that she made some mistakes but Ms. G said not to worry about them. She received no contract of employment or no terms and conditions of employment.
3.2 She states that she found out she was pregnant on 14 February, 2008. At that stage, she was 8 weeks pregnant and wanted to wait until she was further along on her pregnancy to make an announcement in work. On the first week of March, she advised Ms. G of her pregnancy. She states that Ms. G's reaction to her changed and she was not as friendly or interested in her following the announcement and only discussed work matters. She states that Ms. G never even congratulated her on her news. On the morning of 28 March, Ms. G requested the complainant to attend at Mr. M's office. Mr. M is the Director of the respondent company. The complainant had been working on folders for Ms. G and presumed that the meeting was about these folders. Ms. G stated that she was giving the complainant a 6 month review. The complainant states that Ms. G stated that she was not happy with the complainant and she needed someone to step into her shoes and suggested to the complainant that she get some part-time temporary work. Ms. G stated that she was not sacking the complainant; she was giving her two weeks notice. The complainant states that the last thing she said to her that day was 'I am sorry for doing this to you, you have had a shock'. She then offered to get one of the staff to drive her home given the distressed state she was in.
3.3 The complainant felt that it was Mr. M, the Director of the company who did not want her working there. She states that a few days prior to her dismissal, Mr. M came into the office and in a very abrupt manner asked his brother 'why he was chatting to her, had he nothing to do'. The complainant also states that on several occasions Mr. M requested her to do personal errands non work related which was not part of her job description. The complainant states that she did not receive a copy of her terms and conditions of employment and that she was dismissed without any proper procedures being applied. The complainant states that Ms. G lied about giving her two weeks notice as when she finally received her P.45; she noted that she received one weeks notice and one week holiday pay. It is submitted on behalf of the complainant that the respondent's treatment of her constitutes discriminatory dismissal on grounds of pregnancy contrary to the Acts. The complainant seeks to rely on the following decisions of the Equality Tribunal; Brenda Farrell v Irish Youth promotions Ltd., Agnieszka Luzak v Sales Placement Ltd., Sharlene Kennedy v ADC Plasticard Ltd. and Rabbitte v EEC Direct.
SUMMARY OF RESPONDENT'S CASE
4.1 The respondent states that the company employs 23/24 staff. It states that the complainant was employed on a six month probationary basis. The respondent further states that the complainant was advised of this at the interview and was re-iterated to her when she was offered the job. The respondent states that Mr. M and Ms. G were both present when these issues were discussed. During the complainant's interview, the position she applied for was fully outlined to her explaining that the company was a small team and that flexibility would be a key requirement of the role. The respondent states that this was specifically referred to in the advertisement for the post. The respondent submits that the courtesy of proffering tea/coffee from the showroom catering dock to customers waiting to be seen or meeting with the sales team is a standard requirement of the reception duties which were advertised as part of the role. The respondent states that despite being encouraged and reminded on countless occasions of this duty, the complainant rarely ever left her office to attend to any customers unless specifically directed to do so.
4.2 The respondent states that in addition to the reception role, the complainant's duties included balancing of daily cash, reconciling it to cash paid dockets and allocating those payments. The respondent submits that she continued to have difficulty with this procedure after five months of training. Ms. G states that she sat in with the complainant for and hour and a half each morning of the first week. The respondent states that shortages and unallocated credit notes were a constant problem and had to be monitored continuously. In addition, payments were continuously frequently posted to the wrong accounts leaving adjustments to be made as a result. The respondent further states that there were ongoing difficulties in posting creditors ledger invoices. It states that despite the nominal ledger codes being explained thoroughly and repeatedly, invoices consistently appeared in the wrong codes. Ms. G contends that after about 1 month, errors should have ceased. The respondent states that these errors had a serious impact on the accuracy of Company Management Accounts and were time consuming both to trace and correct. It states that posting cheque payments also caused difficulty on more than one occasion which necessitated the intervention of the respondent's software company to resolve and it was this issue which eventually led to this part of the role being removed from the complainant.
4.3 The respondent states that the purpose of the accounts aspect of the complainant's role within the company was to provide some assistance to Ms. G, the Financial Controller but as matters transpired, it interfered with the role of Ms. G due to the ongoing need to check and correct the complainant's work. The respondent states that this was an ongoing issue throughout the probationary period and the company do not accept that it came as a complete shock to the complainant when her employment was terminated at the end of the six month probationary period. Ms. G stated that at the 4 month stage, she had made up her mind that the complainant was not suitable for the post and indicated this to Mr. M but they state that the fact they hired her on a 6 month probationary basis, they felt they were obliged to keep her on until the 6 months had elapsed. Ms. G states that she had spoken to the complainant regarding performance issues on numerous occasions but admitted that nothing to this effect was put in writing. Ms. G states that the complainant was out sick from 12 - 16 February and on her return around 18/19 February, she advised Ms. G regarding her pregnancy and that the sick leave was due to morning sickness. Ms. G states that she congratulated her and advised her to make sure and take proper breaks. At the meeting where the complainant's employment was terminated, she was informed that as she was still having difficulties with the elementary book-keeping principles needed to perform the job proficiently; the company had no option but to let her go. She was informed that while her secretarial skills were good, the most important part of the role was principally a book-keeping function and that going forward the company did not possess the necessary capabilities to progress to the level where her administration of the role in the business could be relied upon. The respondent has submitted documentation regarding repeated errors in the accounts made by the complainant which the respondent states continued throughout the entire period of employment and were still a significant issue up to the termination of her employment.
4.4 The respondent denies that it advised the complainant to get herself part-time temporary work. In relation to the running of errands non work related; the respondent states that staff are flexible and these duties are interchangeable among staff. The respondent denies the allegation of discrimination and states that there was a clear six month probationary period as is company procedure with anyone commencing employment with them and the complainant was not a suitable candidate for the post. Ms. G denies making the comment 'I am sorry for doing this to you, you have had a shock' or that she offered to get one of the staff to drive the complainant home. Mr. M and Ms. G state that the respondent company is a small company and they admit that they did not have proper procedures in place, for example terms and conditions of employment, disciplinary and grievance procedures etc. but they refute the allegation of discrimination and state that the complainant was not a suitable candidate for the post.
5. CONCLUSIONS OF EQUALITY OFFICER
5.1 The issue for decision by me is whether or not the complainant was dismissed by the respondent in circumstances amounting to discrimination on grounds of gender, in terms of section 6 of the Employment Equality Acts and contrary to section 77 of those Acts when it terminated her employment in April, 2008. In reaching my Decision, I have taken into account all of the submissions, oral and written, made to me by the parties as well as the evidence given by the witnesses at the Hearing.
5.2 Section 6 (2A) of the Act states that discrimination on the gender ground shall be taken to occur where, on a ground related to her pregnancy or maternity leave, a woman employee is treated, contrary to any statutory requirement less favourably than another employee is, has been or would be treated. It is important to note that the Acts do not stipulate that claims of discriminatory dismissal on grounds of pregnancy are subject to a minimum length of employment. The Labour Court in a recent determination set out the law in relation to this; "In a line of authorities...the ECJ has made it clear that since pregnancy is a uniquely female condition, any adverse treatment afforded to a woman in consequence of her pregnancy constitutes direct discrimination on grounds of her gender. Furthermore, it is clear that the complainant's pregnancy need not be the only or the dominant reason for the impugned treatment. It is sufficient if it is anything other than a trivial influence for what is complained of (see dictum of Peter Gibson LJ in the decision of the Court of Appeal for England and Wales in Wong v Igen Ltd. and others  IRLR 258)."
5.3 Section 85A of the Employment Equality Acts 1998 - 2007 sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts upon which she can rely in asserting that she suffered discriminatory treatment. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised. The respondent must then discharge that probative burden on credible evidence and on the balance of probabilities.
5.4 The complainant commenced employment with the respondent on 24 September, 2007. She states that she felt she was performing well in the job and despite some issues at the start i.e. she admitted she made some mistakes on the accounting system, she states that she became proficient in the job after 1 month or so. She states that she informed Ms. G of her pregnancy around the first week in March and two weeks later she was advised that her employment was being terminated. The respondent accepts that the complainant's employment was terminated after it became aware of her pregnancy; however, it claims that her employment was terminated due to ongoing performance related issues and it denied that it was in any way connected to her pregnancy.
5.5 The case law of the European Court of Justice (ECJ) is quite clear. In Dekker v Stichting Vormingscrentrum voor Jong Volwassen it held that unfavourable treatment as a result of or connected to pregnancy is direct discrimination on grounds of gender. It later held in Brown v Rentokil that the entire period of pregnancy and maternity leave is a protected period during which both the EU Equal Treatment Directive and EU Pregnancy Directive prohibit dismissal on grounds of pregnancy and dismissal of a pregnant employee during that period can only occur in exceptional circumstances unrelated to pregnancy or maternity. The Labour Court has found that 'no employee can be dismissed while they are pregnant unless there are exceptional circumstances unconnected with the pregnancy and those exceptional circumstances are notified to the employee in writing'. I am satisfied that the proximity of the complainant's dismissal to her announcement of her pregnancy to her employer is a fact which is of sufficient consequence to discharge the complainant's initial burden of proof and shift the onus to the respondent to rebut the inference of discrimination raised.
5.6 The respondent states that the complainant's employment was terminated as she was not a suitable candidate for the post. She was informed that while her secretarial skills were good, the most important part of the role was principally a book-keeping function and that going forward the complainant did not possess the necessary capabilities to progress to the level where her administration of the role in the business could be relied upon. The respondent admitted that the complainant was not formally notified of concerns regarding her performance in the job but that she was corrected on numerous occasions regarding mistakes in the accounts system. The respondent states that the complainant should have been aware that management were not happy with her and the termination of her employment should not have come as a complete shock to her. Ms. G admitted that there was nothing put in writing regarding the mistakes that the complainant was making but that the same errors kept recurring even after 4/5 months in the job. The respondent also states that given the complainant was hired on a 6 month probationary basis, it was of the view that they were obliged to keep her on until the 6 months had elapsed despite her poor performance in the job and despite the fact that Ms. G had come to this conclusion at the 4 month stage where she contends she spoke to Mr. M informing him that the complainant was not working out as far as she was concerned.
5.7 There is a considerable conflict of evidence in this case. Based on the evidence provided at the hearing and the facts as presented, I prefer the evidence of the complainant. I find it plausible that the complainant having learned of her pregnancy on 14 February 2007 that she was 8 weeks at that stage that she would wait another 2/3 weeks before telling her employer. Ms. G states that she advised her on 18/19 February, however, the complainant states that she informed Ms. G in the first week in March. I find it difficult to comprehend that if there were so many problems with the complainant's work performance that these issues were not brought to her attention either formally or in writing during the course of her employment. The respondent states that all employees are hired on a 6 month probationary basis and that management were of the view that they were obliged to keep the employee on until the 6 month review even if they became aware that the person was not working out after a few months. I find it difficult to comprehend that an employer who becomes aware that a person is unsuitable in the job after a number of months would wait until the 6 month period had elapsed before advising the employee of same and then terminate their employment after investing 6 months of time and effort, training etc. in that person. I requested the respondent to provide me with supporting documentary evidence, i.e. some written document where employees were advised that they had met the standards following their 6 month review and that they were being made permanent in the post but the respondent was unable to provide such documentation.
5.8 Ms. G states that given the number of errors regarding the posting of payments to the wrong accounts and the costs to the company as a result, she removed the cashbook duties and posting of cheques from the complainant and undertook it herself. When I queried this issue with the complainant, she states that Ms. G said to her she would be carrying out this duty from now on but Ms. G never advised the complainant that the reason she was taking over these duties was because of all the errors the complainant was making. Ms. G states that she presumed the complainant would be aware of the reason she was removing this duty from her given that she had to repeatedly correct the complainant's mistakes. In this instance, the manager Ms. G did not sit down and go through the concerns/problems she had with the complainant in a formal manner and give her the opportunity to give feedback and correct these mistakes. While the respondent states that there were continuous problems with the complainant's work performance regarding the accounting aspects of the post throughout her employment, she was never formally advised of these or given anything in writing regarding same.
5.9 On balance, having taking all the evidence into consideration including submissions and oral evidence presented at the hearing, I prefer the evidence provided by the complainant and found her to be a credible witness. The respondent has failed to demonstrate that there were any exceptional circumstances not associated with the complainant's pregnancy which led to her termination of employment. I am satisfied from the totality of the evidence that the employment was terminated by the respondent for reasons connected with the complainant's pregnancy. Therefore, I am not satisfied that the respondent has rebutted the inference of discrimination raised by the complainant. I find that the respondent dismissed the complainant in circumstances amounting to discrimination on grounds of gender contrary to the Employment Equality Acts and her claim is entitled to succeed.
6. DECISION OF THE EQUALITY OFFICER.
I find that the termination of the complainant's employment by the respondent constitutes discrimination of her on grounds of gender, in terms of section 6 of the Employment Equality Acts 1998 and 2008 and contrary to section 77 of the Acts. I must now assess the appropriate level of redress. The EU Directives require sanctions for a breach of the principle of equal treatment to be effective, dissuasive and proportionate. In this case, I have no doubt that the complainant's pregnancy was the predominant, if not the sole reason for the respondent's decision to terminate her employment. In the circumstances, I consider it reasonable that redress is measured at €25,000. This award is in compensation for the infringement of the complainant's statutory rights and therefore is not subject to income tax as per section 7 of the Finance Act, 2004. In accordance with my powers under section 82 of the Employment Equality Acts, 1998 to 2008, I order the respondent pay the complainant €25,000 as outlined above.
14 April, 2011