THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision - DEC-E2011-038
(represented by Dundon Callanan
(represented by M.D. O'Loughlin & Co.
File References: EE/2008/327
Date of Issue: 3rd March, 2011
Headnotes: Employment Equality Acts, 1998 to 2008 - discriminatory treatment - gender - pregnancy - disability - discriminatory dismissal - prima facie case - failure to rebut inference of discrimination
1.1 This case concerns a complaint by Ms. A that she was discriminated against by the respondent on the grounds of gender and disability contrary to sections 6(2)(a) and 6(2)(g) of the Employment Equality Acts, 1998 to 2008 in terms of discriminatory dismissal.
2.1 Ms. A referred a complaint under the Employment Equality Acts, 1998 to 2004 to the Director of the Equality Tribunal on 23rd May, 2008. In accordance with his powers under section 75 of the Employment Equality Acts, the Director delegated the cases on 13th October, 2010 to me, Enda Murphy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions under Part VII of the Employment Equality Acts, 1998 to 2008. This is the date I commenced my investigation. A written submission was received from the complainant on 17th December, 2008 and from the respondent on 12th November, 2010. As required by section 79(1) of the Acts and as part of my investigation, I scheduled a hearing of this complaint for 9th February, 2011.
3. Summary of the Complainant's case
3.1 The complainant submitted that she was employed as a Business Development Executive by the respondent from 22nd June, 2007 until 24th January, 2008 when she was dismissed from her employment. In December, 2008 the complainant was ill and was absent from work for a period of four weeks. The complainant returned to work on 7th January, 2008 following this period of illness and worked at first on a three day week basis (she had worked a five day week prior to this period of sick leave). This arrangement was to last for a period of four weeks after which it was intended that she would return to a five day week. The complainant submitted that she had a meeting with Ms. X, Manager, on 7th January, 2008 and explained to her that she was pregnant and that she had also been diagnosed with multiple sclerosis (whilst she was absent on sick leave).
3.2 The complainant submitted that Ms. X called her into a meeting on 24th January, 2008 and informed her that sales targets were not being met and that her position was not there anymore. The complainant submitted that her employment was terminated on this date and that she was paid one weeks notice upon her departure. The complainant submitted that shortly after the meeting with Ms. X on 24th January, 2008 she asked for written confirmation of the reasons for terminating her employment; however, this request was refused by Ms. X who stated that "I don't have to give you that". The complainant submitted that the sudden termination of her employment without prior notice came approximately two weeks after she had advised Ms. X of her pregnancy and that she had been diagnosed with multiple sclerosis. The complainant submitted that she had not been given any prior indication that her position was in jeopardy on the basis of poor performance or failure to achieve sales targets.
3.3 The complainant submitted that the reason she was dismissed from her position was directly attributable to the fact that she was pregnant and had multiple sclerosis. The complainant submitted that within a short period of time after her dismissal the respondent advertised for the position of Corporate, Sales and Key Account Executive in which the job description was exactly the job that she had performed whilst employed by the respondent. The complainant referred to the Equality Officer decisions in the cases of Sinead Bermingham -v- Colours Hair Team and Sharlene Kennedy -v- ADC Plasticard Limited in support of her case.
4. Summary of the Respondent's case
4.1 The respondent submitted that the complainant was employed in the capacity of Business Development Executive from 18th June, 2007 until her employment was terminated on 24th January, 2008. The respondent stated that prior to the complainant's commencement of employment she completed a questionnaire as a result of which it became aware that she was at the early stages of multiple sclerosis. The respondent submitted that on or about October, 2007 it was clear that the complainant was not obtaining a sufficient level of sales which together with the economic downturn indicated that the business and sales in particular would need to accelerate. The respondent stated that a meeting took place in October, 2007 whereby the complainant was advised that more sales were needed.
4.2 The respondent submitted that the complainant was notified that she was required to attend a meeting on 30th November, 2007 concerning her employment. The respondent stated that a decision had been taken by management prior to this meeting that the complainant's position would be eliminated due to the fact that she was not achieving an acceptable level of sales. The respondent stated that the complainant was absent on sick leave on this date and as a result the meeting did not take place. The respondent submitted that the complainant's mother submitted a medical certificate on 11th December, 2007 which confirmed that she would be absent from work on sick leave until 8th January, 2008. The complainant returned to work on this date and she attended a meeting with Ms. X, Manager, on 9th January, 2008 at which her performance and levels of sales were discussed. The respondent stated that the complainant was informed that the situation would be reviewed again after two weeks. The respondent accepts that the complainant informed Ms. X at this meeting that she was pregnant and had been diagnosed with multiple sclerosis.
4.3 The respondent submitted that the complainant was called to a further meeting on 24th January, 2008 and was informed by Ms. X that as a result of the economic downturn and her poor level of sales that it was not possible to continue with her employment. The respondent stated that the complainant was provided with one week's pay in lieu of notice and her employment was terminated at that juncture. The respondent submitted that the reasons relating to the termination of the complainant's employment related solely to economic circumstances and had nothing to do with her multiple sclerosis or pregnancy. The complainant referred to the Equality Officer decision in the case of Aisling McKiernan -v- Paul Ferris Solicitors in support of its case.
5. Conclusions of the Equality Officer
5.1 Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to her. If she succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. 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. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the respondent.
5.2 Section 6(1) of the Employment Equality Acts, 1998 to 2008 provides that discrimination shall be taken to occur where "a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2).....". Section 6(2)(a) of the Acts defines the discriminatory ground of gender as follows - "as between any 2 persons, ... that one is a woman and the other is a man" and section 6(2)(g) of the Acts defines the discriminatory ground of disability as follows - "as between any 2 persons, that one is a person with a disability and the other either is not or is a person with a different disability".
5.3 Accordingly, the issue for decision in this case is whether or not the complainant was subjected to discrimination by the respondent on the grounds of her gender and disability in terms of her dismissal from her employment. In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties. I will proceed to examine the complaint on each of the grounds claimed i.e. the Gender and Disability grounds.
5.4 The actual issue of the complainant's dismissal from her position as a Business Development Executive is not in dispute between the parties in the present case. The complainant claims that she was dismissed from her employment on the grounds of her gender after she had informed the respondent that she was pregnant. The respondent denies that the complainant's dismissal was in any way connected to the fact of her pregnancy and it claims that her employment was terminated because of the effects of the economic downturn and her failure to attain an acceptable level of sales during the initial six months of her employment.
5.5 It is well established jurisprudence of the European Court of Justice (as has been held in the cases of Webb -v- Emo Air Cargo, Brown -v- Rentokil Ltd and Dekker -v- Stichting Vorm.) that women who are pregnant are to be afforded special protection in employment and their employment cannot be terminated from the beginning of their pregnancy until the end of their period of maternity leave (the protected period) save in exceptional circumstances unrelated to pregnancy. The Labour Court also held in the case of Intrium Justitia -v- Kerrie McGarvey that: "It is settled law that special protection against dismissal exists during pregnancy. Only the most exceptional circumstances not connected with the condition of pregnancy allow for any deviation from this. It is equally settled law that the dismissal of a pregnant woman (which can, obviously, only apply to women) raises a prima facie case of discrimination on the gender ground. Once such a case has been raised the burden of proof shifts and it is for the respondent employer to prove that discriminatory treatment on the stated grounds did not take place". In the present case, the respondent accepts that it was aware that the complainant was pregnant at the time her employment was terminated. Having regard to the foregoing, I am satisfied that this fact is sufficient to raise an inference of discrimination against the complainant on the grounds of her gender. In such circumstances, the burden of proof shifts and it is for the respondent to prove that the discriminatory treatment on the stated ground did not take place.
5.6 The respondent has claimed that the complainant was dismissed as a direct consequence of her poor performance in her position allied to the consequences of the economic downturn upon its business and it denies that the decision to terminate her employment was in any way connected to her pregnancy. I note that there was a dispute in the evidence of the parties as to whether or not the respondent had raised any issues with the complainant in relation to her performance prior to the date that she informed it of her pregnancy (in early January, 2008). The respondent, on the one hand, stated that it had addressed the issue of the complainant's poor level of sales with her at a number of meetings during the period up to the end of November, 2007. The respondent stated that the complainant's performance did not improve sufficiently and a decision was taken to eliminate her position as part of a restructuring of work within the Munster branch of the business. The respondent submitted that it was decided the duties associated with the complainant's position would be subsumed into the roles of the other members of staff within the Munster office. The respondent stated that the decision to terminate the complainant's employment was taken during the week prior to her probation review meeting which had been due to take place on 30th November, 2007 (however, this meeting did not take place on that date because the complainant was absent on sick leave).
5.7 The complainant, on the other hand, accepts that she did not achieve her sales targets during the initial six months of her employment. However, she stated that the company in general was not meeting its sales targets during this period. The complainant accepts that she had a number of general discussions with her Manager, Ms. X (prior to when she went absent on sick leave on 30th November, 2007) regarding the level of sales that were being achieved within the company. However, she disputes the respondent's contention that there were any meetings called to specifically address issues or difficulties in relation to her personal performance. The complainant claims that she was not given any indication that her position within the company was in jeopardy prior to the announcement of her pregnancy on the basis of her poor personal performance or the need for a restructuring within the company.
5.8 Having regard to the evidence adduced, it is clear that the complainant did not achieve her sales targets during her period of employment and I note that she did not dispute the respondent's evidence that the level of sales which she achieved during this period were significantly lower than the targets which had been set upon the commencement of her employment. However, I do not accept that the respondent raised these performance related issues with the complainant to the extent which it claims or that it gave her any indication prior to the announcement of her pregnancy in January, 2008 that her employment would be terminated if her performance did not improve. In coming to these conclusions, I have taken into consideration the following factors, namely:
- Ms. X, Manager, did not attend the hearing to give evidence in relation to the meetings which the respondent claims took place between her and the complainant during this period and therefore, the majority of its evidence in this regard is largely uncorroborated hearsay evidence.
- The complainant gave evidence that the respondent did not raise any issues regarding her personal performance and that any discussions which took place regarding sales targets related to the performance of the Munster branch in general. I have found the complainant to be a credible witness and I am satisfied that her evidence represents a more accurate account of the events that transpired during this period.
- The respondent did not issue the complainant with any verbal or written warnings regarding her performance during the course of her employment.
- The complainant was paid a bonus during her period of employment (which her contract of employment states would be available on the successful achievement of targets set by management).
- The respondent signed a salary certificate (which the complainant required to be completed in order to obtain a loan from a financial institution) on 27th November, 2007 which indicated that her employment was likely to continue into the future. I am of the view the very fact that the respondent signed this form on 27th November, 2007 is inconsistent with its evidence that a decision had been taken prior to that date to terminate her employment.
- The complainant was absent on sick leave for the month of December and did not return to work until 8th January, 2008 and as a result the probation review meeting which was scheduled for 30th November, 2007 took place on 9th January, 2008. The respondent submitted into evidence a contemporaneous note of the discussions which it claimed took place between Ms. X and the complainant at this review meeting. The content of this note indicates that the respondent "was not entirely happy" about the level of sales achieved by the complainant and it set out a two week work plan with a further review at the end of that period. I am of the view that the content of this note of the complainant's probation review meeting is totally inconsistent with the respondent's evidence that a decision had already been taken (in November, 2007) to dismiss her on the grounds of poor performance.
- The respondent placed an advertisement on the internet for the position of a Corporate, Sales and Key Account Executive after the complainant was dismissed in January, 2008 and another person was subsequently recruited to this position. I am satisfied that the duties listed in the advertisement for this position were largely the same as those carried out by the complainant. Again, I am of the view that the very fact the respondent recruited a person to the position of Corporate, Sales and Key Account Executive after the complainant was dismissed is inconsistent with its evidence that a decision had been taken in November, 2007 to eliminate her position due to a reorganisation within the business.
5.10 It was not disputed that the complainant's employment was terminated by the respondent within a very short period of time after she had informed it of her pregnancy. The respondent accepts that the complainant informed Ms. X about her pregnancy and diagnosis of multiple sclerosis during a conversation on 7th January, 2008 and that she was dismissed from her employment on 24th January, 2008. The complainant claims that the respondent refused to provide a written explanation of the reasons for her dismissal despite making such a request to Ms. X. In this regard, I note that Article 10(2) of EU Directive 92/85/EEC states that where workers are dismissed during pregnancy the employer must cite duly substantiated grounds in writing for the dismissal. Also, in the case of A Company -v- A Worker the Labour Court reiterated the requirement to take this approach where it held that; "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 be set out in writing." I am satisfied that the respondent clearly failed to comply with its obligations in this regard in terms of the manner in which it effected the complainant's dismissal.
5.12 The Labour Court has recently held in the case of Nail Zone Limited -v- A Worker that "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 Wong v Igen Ltd and others  IRLR 258)". Having regard to the totality of the evidence adduced, I do not accept the respondent's evidence that the decision to dismiss the complainant was directly attributable to issues surrounding her performance or a restructuring within the company. As I have already stated, I am not satisfied that the respondent had raised these issues with the complainant to the extent that it has claimed or that it had given her any indication that her position was in jeopardy because of performance related issues prior to becoming aware of her pregnancy. In the circumstances, I find that the respondent has not demonstrated that the decision to dismiss the complainant was wholly unconnected to her pregnancy especially in light of the fact that her dismissal was effected within such a short period of time after she had informed the respondent of her pregnancy. Accordingly, I find that the respondent has failed to rebut the inference of discrimination on the grounds of gender in the present case.
5.13 The complainant has also claimed that she was discriminated against by the respondent on the grounds of her disability in terms of its decision to dismiss her from her employment on 24th January, 2008. The complainant had been diagnosed with multiple sclerosis just prior to her dismissal and I am satisfied that this condition constitutes a disability within the meaning of section 2(1) of the Employment Equality Acts. The respondent denies that it discriminated against the complainant on the grounds of her disability and it claims that it was aware of her disability at the time she was offered a contract of employment in June, 2007. In considering this issue, I note that it was accepted that there had been discussions between the respondent and the complainant regarding her medical condition prior to her commencement of employment. These discussions arose as a result of an unexplained 'gap' in the complainant's CV and it was not disputed that she had disclosed to the respondent the possibility that she may have multiple sclerosis at that juncture (although the conditions was not ultimately diagnosed until December, 2007).
5.14 I am satisfied that the respondent proceeded to offer the complainant a contract of employment, notwithstanding the fact, that it was aware there was a possibility that she had multiple sclerosis at that juncture. I also note that the complainant has neither claimed, nor indeed has she sought to adduce any evidence to suggest, that she was treated less favourably by the respondent during her period of employment on account of fact that she had a disability. The respondent adduced evidence that it sought to provide reasonable accommodation to the complainant during her employment and it provided evidence in relation to occasions where she was afforded accommodations in terms of the number of hours that she was required to work at certain events. I also note that the respondent agreed to allow the complainant to return to work on a three day week basis in January, 2008 in order to facilitate her multiple sclerosis (she had been working a five day week prior to being diagnosed with this condition). Having regard to the totality of the evidence adduced, I am not satisfied that the complainant has adduced any evidence from which I could reasonably conclude that the respondent's decision to dismiss her from her employment was in any way connected to her disability. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination on the grounds of her disability in terms of her dismissal.
6.1 Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998 to 2008.
I find that the respondent discriminated against the complainant on the gender ground in terms of section 6(2)(a) of the Employment Equality Acts and contrary to section 8 of the Acts in relation to discriminatory dismissal.
I find that the respondent did not discriminate against the complainant on the disability ground in terms of section 6(2)(g) of the Employment Equality Acts and contrary to section 8 of the Acts in relation to discriminatory dismissal.
Section 82 of the Employment Equality Acts provides that I can make an order for the effects of the discrimination. In considering the redress in this case, I have to be aware that any award for compensation should be proportionate, effective and dissuasive. In considering the level of redress to be awarded in the present case, I have taken into consideration the undisputed evidence that the complainant had not achieved her sales targets during her period of employment. However, I am satisfied that the respondent did not address any issues that arose in relation to her performance in the appropriate manner and I find that the complainant's pregnancy was the predominant reason for the respondent's decision to terminate her employment. In accordance with section 82 of the Employment Equality Acts, I hereby order that the respondent pay the complainant the sum of €15,000 compensation for the effects of the act of discrimination. 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.
3rd March, 2011