THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS, 1998-2008
Decision DEC - E2012 - 105
Ms Claire Keenan
(represented by Lavelle Coleman, solicitors)
Stephen Kehoe t/a Mortgage Cabin
File Reference: EE/2008/742
Date of Issue: 14th August, 2012
Headnotes: Employment Equality Acts, - Section 6(2)(a) gender - Section 8(1)(b), conditions of employment - Section 8(6)(c), dismissal - Section 74(2), victimisation - dismissal while pregnant - whether victimisation claim can be considered - reduction in commission never applied
1.1. This case concerns a complaint by Ms Claire Keenan (hereinafter referred to as "the complainant") that she was discriminated against by Mr Stephen Kehoe t/a Mortgage Cabin (hereinafter referred to as "the respondent") on the ground of gender, contrary to section 6(2)(a) of the Employment Equality Acts, 1998 - 2008 ("the Acts"), in relation to dismissal and conditions of employment, contrary to Section 8(1)(b) and 8(6)(c) of the Acts respectively, and that she was victimised by the respondent, contrary to Section 74(2) of the Acts.
2.1. The complainant referred a complaint under the Acts to the Director of the Equality Tribunal on 7th November, 2008, alleging that the respondent had discriminated against her on the ground of gender. In submissions received on 15th June, 2009, she also claimed she had been victimised by the respondent.
2.2. Written submissions were received from both parties. On 26th April, 2011, in accordance with his powers under section 75 of the Acts, the Director delegated the case to me, Gary O'Doherty, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions under Part VII of the Acts, on which date my investigation commenced.
2.3. A hearing of the matter was set for 6th October, 2011. However, the notice of hearing to the respondent was returned to the Tribunal marked "gone away". In that context, the hearing was adjourned pending receipt of updated contact details for the respondent. These were provided to the Tribunal by the complainant on 7th March, 2012. In that context, the hearing was rearranged for 8th June, 2012. The notice of hearing to the respondent in this respect was again returned, once more marked "gone away". However, when this notice was re-sent by ordinary post, the respondent responded to it on 17th April and confirmed that he would attend the hearing of the matter.
2.4. The respondent was not in attendance at the hearing. Nonetheless, as I was satisfied that he had been served with proper notice of the hearing and as he had not contacted the Tribunal to provide an adequate explanation for his absence, I proceeded with the hearing.
2.5. In correspondence with the parties subsequent to the hearing, the Tribunal received a letter from the respondent apologising to it for not attending the hearing. He wrote that he had recorded the incorrect date for the hearing in his diary. The Tribunal responded to him to say that it would be contrary to the principles of fair procedures and natural justice to set any further hearings in relation to this matter. However, the respondent was provided with an opportunity to respond to the documents provided by the complainant at and after the hearing. He did so, and his submissions in this respect have been considered in the within decision. Final post-hearing correspondence was received from the respondent on 21st June, 2012.
3. Summary of the Complainant's case
Complainant's evidence/submissions on facts
3.1. The complainant stated that she started working as a mortgage consultant for the respondent in February 2005. She stated that she informed him in December 2007 that she was pregnant. She stated that a new employee, Mr. A, was hired in May 2008 to take on some of the workload. She denied the respondent's submissions with respect to Mr. A (i.e. that he was just a junior administrator). She stated, essentially, that they were doing the same work except that she was more senior and that he was hired to do work which she and the respondent had previously been doing between them. She stated that there were a few other people who worked there for short periods of time while she was there although one female employee who did administrative work remained for a year.
3.2. The complainant stated that, subsequent to informing the respondent of her pregnancy, the respondent told her he did not want her going on maternity leave and referred to a person he knew of who had returned to work after only two months of maternity leave. She submitted that he asked her to take shorter maternity leave in that respect. She said he also asked her to work from home while on maternity leave. She said that she felt pressurised into agreeing to this.
3.3. The complainant stated that the respondent never spoke about nor was she otherwise aware of any financial difficulties with the respondent's organisation until she met with him and Mr. A on 3rd June, 2008. She said that, in the course of this conversation, the respondent said that "finances are tight". She described proposals she made and proposals the respondent made in that respect and the discussions they had around those proposals. She said that he sent an e-mail to her on 4th June which she read the following morning. This e-mail stated that the respondent's bank had decided it could no longer give him a business overdraft facility and outlined his discussions with the bank and concerns about the matter.
3.4. The complainant stated that, around this time, she noticed that Mr. A was being trained in life insurance in which he had no expertise and in which she had been trained to work. She added that "it was understood I would do life assurance". She said that she queried this with the respondent.
3.5. The complainant stated that she spoke with the respondent again on 6th April. She stated that he told her he had worked out an arrangement with the bank and had been able to add some of his personal funds to the business but he told her that he could not pay her any commission for the foreseeable future. She said he was evasive when she told him that the level of closures she had achieved in the previous month was the highest ever. When she asked what other cuts were being made, she said that he told her Mr. A was not being cut, only her and the call centre which took calls on their behalf. She stated that they then "went around in circles". She stated that she received her cheque from him later that day. She added that Mr. A told her he had been fully paid.
3.6. The complainant stated that they spoke again on 9th June when he asked her to reduce her commission to 10% (from 15%). She said that she responded that she could not afford it to which he said he did not know what they were going to do. She said that he then referred to one of their clients "giving €10k to €12k for a redundancy". She said this was the first mention of redundancy and was a "fleeting" comment. She said the difference was only €1,000 and he said they would leave it at that.
3.7. The complainant stated that, on 13th June, the respondent called her into her office. He said that he told her he was making her redundant. She said that she asked why she was being made redundant rather than Mr. A and he told her that "there isn't enough business to go around". She said that she asked about holiday pay and he spoke with the person who looked after the accounts who gave him the figure. She said that he told her he would provide her with her redundancy cheque and her holiday pay once she signed a document which, inter alia, stated that the cheque was "in full and final settlement of all claims arising from the termination of (her) employment with Mortgage Cabin". She stated that she refused to sign it and so did not receive the cheque.
3.8. The complainant stated that she left the respondent's office at that stage as she told him she wished to receive legal advice in the matter. She stated that she did not speak with him again after this. She denied the submission of the respondent that he told her she could take the cheque without signing the form.
3.9. The complainant submitted that she was unfairly selected for redundancy as a result of her pregnancy. She submitted that she was due to take maternity leave on 28th July, 2008 and that this influenced the decision of the respondent to dismiss her on 13th June, 2008. She submitted that the respondent's behaviour towards her changed following the announcement of her pregnancy in December 2007, and, specifically, when she formally informed him of her intention to take her full entitlement to maternity leave, which she did on or about 7th May, 2008. She submitted that the decision to select her for redundancy was not made in a sufficiently transparent manner, particularly in the absence of objective selection criteria.
3.10. With respect to the respondent's submissions on its financial position, the complainant stated that her complete salary indicated to her that things were going well (she earned around €100,000 per year) as they were closing mortgages. She provided documentary evidence to the Tribunal in that respect, including a projection of the organisation's financial position which she had compiled based on her commission. She denied the respondent's submission that he had paid for flights for her to visit an ill relative and gave an explanation of what she said had actually occurred in that context.
3.11. The complainant also submitted that she was victimised by the respondent regarding the circumstances of her dismissal. She submitted that there was an effective refusal by the respondent to pay her redundancy as a result of her unwillingness to waive her right to make a claim under the Acts. She submitted that he prepared this waiver in anticipation of such a claim and that this amounts to victimisation. In support of this contention, she referred to the case of Lane -v- MBNA1 where the complainant received a reduced redundancy package as she refused to sign a similar waiver and so the Equality officer in that case found there was victimisation. With respect to the question of whether this claim was in time (having first been made in the complainant's submission to the Tribunal), the complainant submitted that the Tribunal should use its discretion to find the matter within time.
3.12. The complainant stated that the only information she took from the respondent was her own salary information. She stated that her pay at the time was €38,000 plus commission of 15% and she provided details with respect to same. She stated that she had also been treated in an unfair manner in not being paid her arrears of commission of €10,721 plus holiday pay of €870.50, which she was still owed. Nor did she receive €3,000 in lieu of notice which she stated she was also owed. She stated that she has been working since September, 2009 on a lower salary.
3.13. In summary, the complainant stated that the respondent gave no consideration to making Mr. A redundant and did not carry out any selection process for the redundancy. She stated that, even if there was a genuine redundancy, there was an unfair selection for it as Mr. A was taken on to replace her. Furthermore, she submitted that Mr. A was not subjected to a reduction in salary. She stated that she was made redundant while she was pregnant and the burden of proof had shifted to the respondent in that respect to show that the redundancy was related to exceptional grounds unrelated to her pregnancy. In short, she stated that she was dismissed because she was pregnant and, in particular, because she had stated her intention to take her full maternity leave entitlements.
4. Summary of the Respondent's case
4.1. As already outlined, the respondent was not in attendance at the hearing. However, he made a number of submissions, both prior to the hearing and afterwards, which have been considered by the Tribunal and which may be summarised as they are in the following paragraphs.
4.2. In his submissions, the respondent refuted that he ever asked the complainant about taking shorter maternity leave. He submitted that, in fact, the complainant asked him if she could work from home while she was on maternity leave. He also submitted that the complainant's statement that she "understood that she was to handle the respondent's life assurance business from home during maternity leave" supported his contention that it was her that was pressurising him to work from home and not the other way around. He submitted that he told her she was not to work from home and that he wanted Mr. A to provide the cover while she was away and this was why he was trained in the insurance aspect of the business.
4.3. With respect to the respondent's financial position, he submitted that "they had been suffering a loss for a few months". He submitted that repossessions were doubling and any money they made was being clawed back. He submitted that, even though it looked like they were making €50,000 in some months, nearly half of that was due in clawback. He submitted that the office was very expensive to run and this was why it got in to difficulty. He submitted that he tried everything he could to cut costs but the complainant was unwilling to compromise in relation to her commission. He submitted that the complainant's submissions as to the financial state of the company were based on her own salary figures and she did not have access to all the figures and information. He submitted that the organisation was actually suffering a loss of €15,000 at the time in question (i.e. June, 2008).
4.4. The respondent submitted that he begged the complainant to "meet me on commissions to help save the company". He also submitted that he had cut off the call centre as he could not afford it. He submitted that because they were a sub-prime lender and because of the sub-prime crisis, they were hit very badly. He submitted that he met with both the complainant and Mr. A several times to discuss the seriousness of the situation and provided documentary evidence to the Tribunal to support his submission in that respect. He added that he was apologetic to the complainant and did not want to upset her as he was very conscious of her "personal state".
4.5. With respect to the meeting that took place on 13th June, the respondent submitted that he told her he had tried every avenue possible but had no choice other than to make her redundant. He submitted that she stated that she understood that it was his business and he had to do what he thought was right. He submitted that she took the RP50 form and copied it and they clarified the matter with respect to holiday pay. He denied that he would not give her the cheque unless she signed the document stating that the redundancy cheque was in full and final settlement of all claims relating to her employment (as referred to at paragraph 3.7 above). He submitted that he told her there was no problem if she did not want to sign it there and then but that she could take the cheque anyway. He submitted that he apologised to her for having to make her redundant and she wished him luck.
4.6. The respondent provided a statement to the Tribunal from Mr. A stating that he saw no discrimination and that he understood it was the complainant that wished to work from home. Mr. A was not present at the hearing. The respondent also provided a statement from a Mr. B who was an insurance representative who the respondent stated worked with the complainant almost daily. This statement stated that he did not witness any discrimination. Mr. B was not present at the hearing. The respondent also made a number of submissions with respect to a claim that the complainant had, without his consent, taken information from his database after she left his employment. He also made reference to settlement discussions between the complainant's solicitor and himself.
4.7. The respondent submitted that he had a great working relationship with the complainant and provided documentary evidence of same. He stated that he provided all his staff with named benefits, including paying for flights for the complainant to visit her ill sister in New York. He submitted that he was thrilled to learn she was pregnant. He outlined the assistance he provided to both her and her husband with respect to personal matters. He submitted that he provided the complainant with "lots of time to herself" and that this was never a problem as she always did her work. In that context, he stated that he could not have discriminated against her. He submitted that the documentary evidence presented to the Tribunal showed that he had tried his best to save the business and was acting as responsibly as he could.
4.8. In summary, the respondent submitted that the complainant was not discriminated against. He submitted that she was not put under pressure to work from home. He submitted that he had always shown good character and a duty of care towards his staff. He submitted that Mr. A was not considered for redundancy as he was just a junior administrator. He submitted that the choice in that respect was between himself and the complainant.
5. Conclusions of the Equality Officer
Jurisdictional Issue - Claim of Victimisation
5.1. The complainant did not provide any information, in any part of her application form, which could be taken to suggest that she was making a claim of victimisation. If the incident that was the subject of the victimisation claim (i.e. that the respondent had asked the complainant to sign a waiver before receiving her redundancy cheque) had been referred to in the complaint form in any way, then, in all the circumstances of the present complaint, the question of whether the Tribunal had jurisdiction to consider the matter may not have arisen. However, as it is, it is clear that the first reference to victimisation or to the incident which is the subject of the victimisation complaint was not made until the complainant's submission was received by the Tribunal.
5.2. The complainant asked the Tribunal to use its 'discretion' in this respect. While the Tribunal has found on numerous occasions that it can consider victimisation claims that were not included on the complaint form, this has usually been when the victimisation claim took place after the complaint was submitted2. It is quite logical that this would occur as many incidents of victimisation can only take place after a complaint has been lodged as they occur because that complaint was lodged. It can also be said that, as outlined by the High Court in Co. Louth VEC -v The Equality Tribunal3, a party may furnish "further and better particulars" provided the general nature of the complaint remains the same.
5.3. However, in the present case, I note the following particular facts:
i) that where there is a claim of discrimination and a claim of victimisation, as in the present case, two separate awards may be made if both claims prove successful;
ii) the complainant was aware of the requirements of the Acts with respect to the lodging of an additional claim of victimisation as she was represented long before the time limit came into effect;
iii) there was no reason why some reference to the victimisation claim could not have been made in the complaint form as the alleged act in question had already occurred, having taken place on the same day as the dismissal;
iv) there was and has been no further alleged act of victimisation.
5.4. In those circumstances, and in all the other circumstances of the present case, I am satisfied that the general nature of the complainant's claim would not remain the same were I to consider the claim of victimisation. Therefore, it must be considered as a separate claim. In that context, the only 'discretion' the Tribunal has is to extend the time for receipt of this claim from six to twelve months. I note that the alleged incident of victimisation took place on 13th June, 2008 whereas the victimisation claim was not made until receipt of the complainant's submissions on 15th June, 2009, a year and two days after the alleged act of victimisation. (It should also be noted that the submission in question was first requested by the Tribunal on 9th March, 2009). Therefore, as the victimisation claim was first made more than twelve months after the alleged act in question, I cannot consider the matter.
5.5. Section 85A of the Act sets out the burden of proof which applies to a claim of discrimination. It requires the complainant to establish, in the first instance, facts upon which she can rely in asserting that she has 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. Prima facie evidence has been described as 'evidence which in the absence of any credible contradictory evidence by the employer would lead any reasonable person to conclude that discrimination has probably occurred.' 4
5.6. Section 6(1) of the Acts 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..." Section 6(2)(a) of the Acts defines the discriminatory ground of gender as follows - "as between any two persons ..... that one is a man and the other is a woman". The issue for me to decide in this case, then, is whether the complainant was subjected to less favourable treatment in comparison to another person on the ground of gender with respect to her conditions of employment and/or her dismissal. In reaching my decision in this case, I have taken into account all of the submissions, both oral and written, made to the Tribunal in the course of its investigation.
5.7. Beginning with Dekker v Stichting Vormingscentrum voor Junge Volwassenen5, it has long been the established jurisprudence of the European Court of Justice that the entire period of pregnancy and maternity leave constitutes a specially protected period. As the Labour Court stated in Trailercare Holdings -v- Healy,6 it is "abundantly clear from these authorities, and from the legislative provision of the European Union, that women are to be afforded special protection from adverse treatment, and in particular from dismissal on account of their condition, from the commencement of their pregnancy until the end of their maternity leave...that protection is...a fundamental and inviolable right...which the Courts and Tribunals of the Union must vindicate... where a pregnant woman is dismissed during this period...the employer bears the burden of proving, on cogent and credible evidence, that the dismissal was in no sense whatsoever related to her pregnancy...".
5.8. In the present case, it is not disputed that the complainant was made redundant by the respondent while she was pregnant. The respondent did not attend the hearing and so did not offer any oral evidence with respect to the reasons for this redundancy. However, it is clear from his submissions (both those received before the hearing and subsequent to it) that his principal argument in this respect is that he had no alternative but to make the complainant redundant due to the financial circumstances of the organisation at the time in question. In light of the jurisprudence outlined above, the burden of proof is with the respondent to show that to be the case. I am not satisfied that he has done so.
5.9. I accept that the level of the complainant's commission, taken in isolation from all the other circumstances of the respondent's organisation, cannot be relied upon to provide an accurate reflection of the respondent's financial position. I also note the statements made by the respondent in rebuttal. However, given that the respondent failed to appear for the oral hearing and has not provided any documentary evidence to support his submissions in this respect, it should also be noted that the Labour Court stated in Melbury -v- Valpeters7, "Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn". Equally, they cannot be relied upon as the sole basis for the rebuttal of an established prima facie case of discrimination.
5.10. I also note that the respondent hired Mr. A as an additional employee approximately six weeks before making the complainant redundant. The respondent submitted that Mr. A had nothing to do with the work being done by himself and the complainant. The complainant submits that the work he did was similar to hers, albeit not to the same level of seniority. I prefer the evidence of the complainant in this respect and I am satisfied that much, if not most, of the work that Mr. A undertook was similar to the work carried out by the complainant. In any event, the key point here is that the hiring of Mr. A as an additional employee shortly before making the complainant redundant is not consistent with the submission of the respondent that he was in serious financial difficulty at that time.
5.11. I have also taken account of the evidence provided by the complainant with respect to the approach of the respondent towards her in the weeks and months prior to making her redundant. While this evidence was inconsistent at times, the documentary evidence provided by both parties is supportive of the general proposition she put forward in that respect. In that context, I am satisfied that the respondent did take issue with the complainant availing of her full maternity leave entitlements and did seek to put pressure on her to reduce her maternity leave or at least to work from home then. In those circumstances, I find I must also accept the complainant's submission in so far as she contends that the decision of the respondent to make her redundant was influenced by the fact that she had told him she would be taking up her full maternity leave entitlements.
5.12. In short, I am satisfied that the evidence presented to the Tribunal in this case does not support the respondent's submission that the complainant was made redundant solely due to financial considerations. In that context, the complainant has established a prima facie case of discrimination on the gender ground with respect to her dismissal, and the respondent has failed to rebut the prima facie case established in that respect.
Conditions of Employment
5.13. As already stated, I am satisfied that the respondent took issue with the complainant availing of her full maternity rights. However, it is clear that the only adverse treatment of her in that respect was to dismiss her and this matter has already been dealt with in that context.
5.14. The complainant also submitted that the reduction in the complainant's commission was adverse treatment arising out of her pregnancy. However, I note that the complainant did not receive the final arrears of commission owed to her, including the first reduced commission payment. While I appreciate that the reason she did not receive this payment was because she was dismissed, and while it appears that she was entitled to that payment, I consider, nonetheless, that it would be ultra vires for me to find that the respondent treated her less favourably with respect to reducing her commission when she never actually received a payment based on the reduced commission.
Other Matters (raised by respondent)
5.15. The respondent's claim that the complainant took information without his consent is not a matter for the Tribunal to consider. Additionally, the respondent's settlement discussions with the complainant's solicitor, and any matters arising, are irrelevant to the substantive matters for consideration by the Tribunal in this case.
5.16. I am satisfied, as submitted by the complainant, that her wish to avail of her full maternity rights was the catalyst for the redundancy. I also accept her submission that she was pressurised into agreeing to work from home for at least some part of her period of maternity leave. In that context, I am satisfied that a dissuasive award is warranted in this case. Finally, it should be noted that my award in this matter is informed by the payslips provided by the complainant which show her final six months total remuneration to be €47,403.33.
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:
6.2. I find that the complainant's claim of victimisation in terms of Section 74(2) of the Acts is out of time.
6.3. I find that the complainant has failed to establish a prima facie case that the respondent discriminated against her on the gender ground pursuant to section 6(2)(a) of the Acts in terms of conditions of employment, contrary to s.8(1)(b) of the Acts
6.4. I find that the respondent discriminated against the complainant on the gender ground pursuant to section 6(2)(a) of the Acts in terms of dismissal, contrary to s.8(6)(c) of the Acts
6.5. In accordance with Section 82 of the Acts, I order the respondent to pay to the complainant the sum of €95,000 (being the approximate equivalent of twelve month's remuneration) in respect of the discrimination. This award is made to compensate the complainant for the distress caused to her as a result of the discrimination by the respondent and, in that context, it is not in the nature of pay.
14th August, 2012
2 See, for example, in the recent case of An Employee -v- A Government Department, DEC-E2012-032
3 Unreported High Court, 24th July, 2009
4 EE5/1986 Gibney v Dublin Corporation
5  ECR 1-3941
6 EDA128, 16th March, 2012
7 Labour Court Determination EDA0917, 16th September, 2009.  21 E.L.R.