EMPLOYMENT EQUALITY ACTS 1998-2011
Decision DEC - E2012-092
PARTIES
Lana Gavrilova
(Represented by Holmes O'Malley Sexton, Solicitors)
-V-
Kristaps Slakters t/a Hot Scissors Hair Studio
(represented by O'Gorman Solicitors)
File Reference: EE/2009/854
Date of Issue: 17th July 2012
Keywords
Employment Equality Acts 1998-2008, Dismissal - Section 2(1), Section 6(1) - less favourable treatment, Section 6(2)(a)- gender, Section 8 conditions of employment, pregnancy and discriminatory dismissal.
1. Dispute
1.1 This dispute concerns a claim by the above named complainant that she was discriminated against by the above named respondent on the gender, marital status, family and age grounds, in terms of Sections 6(1), 6(2)(a)(b)(c) & (f) of the Employment Equality Acts 1998-2011 and contrary to section 8 in relation to her conditions of employment and dismissal. The claims in respect of marital status, family status and age were withdrawn at the commencement of the hearing.
2. Background
2.1 The complainant referred a complaint under the Employment Equality Acts to the Equality Tribunal on the 25th November 2009 alleging that the respondent discriminated against her contrary to the Acts in relation to her condition of employment and dismissal. In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2011 the Director delegated the case on the 12th June 2012 to me, Marian Duffy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts. This is the date I commenced my investigation. A written submission was received from the complainant on the 7th May 2010 and from the respondent on the 21st June 2010. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on the 22nd June 2012 and the final correspondence was received on the 29th June 2012.
3. Summary of the Case
3.1 The complainant is a Latvian national and she submits that she was employed by the respondent from January 2009 until 20th October 2009 when her employment was terminated. She said that she is a qualified beautician for 6 years. In early January 2009 she met the respondent at his salon and enquired about jobs. The respondent told her he was thinking of employing someone to do nails. He agreed to take her on and he provided the tables and equipment for the salon. It was agreed between the parties that she would be paid 60% of the money she took in every week and that she would pay her own PRSI. It took a while to set up the salon and the complainant did not start work until February and in or about this time she told the respondent she was pregnant. On the 28th July 2009 the complainant went out on pregnancy related sick leave. She said that she believed she would be going back to work after her illness but she was unable to do so and her doctor certified her sick leave until she went on maternity leave. The complainant said that sometime during August when she handed in a medical certificate the respondent said that he did not require any more medical certificates.
3.2 On the 28th August she received a telephone call from the employer asking her to come in to work at 6pm to attend a client. She told him she could not make it because she was sick. He got very angry on the telephone. The respondent then called to her home looking for money to pay the PRSI. On the 30th September 2009 her mother called to the shop to get the form signed for her maternity benefit. The respondent told her mother to come back later but when she did he got very angry with her. He recorded the conversation on his telephone. He asked for the complainant to sign a letter to say she had no problems or issues with her employment and unless she did so he would not sign her maternity benefit. The complainant remained on sick leave and her baby was born on the 11th of October 2009. She received her P45, payslips a letter of warning and a dismissal notice in the post on the 20th October 2009.
3.3 The complainant denied that she was late for appointments or that she failed to turn up for appointments. She also said that she did not come to the salon to collect material do to clients at home during her sick leave. She also denied that the quality of her work was inferior. She said that she was qualified in all aspects of the work except for gel nails, but she could do acrylic nails. She did not accept that she had received warnings about the quality of her work. She submits that there was no reason for her dismissal. Her solicitor submitted that the dismissal was pregnancy related and in the circumstances of the case the onus shifts to the respondent and there is a high level of proof on the respondent to show that the dismissal was not discriminatory for discriminatory reasons.
4. Respondents Case
4.1 The respondent stated that the complainant approached him in his hairdressing salon to enquire if she could operate as a beauty therapist out of the premises. He agreed and set up a room in the hairdressing salon and purchased all the equipment necessary to facilitate the complainant. She commenced working out of the premised as a beauty therapist on a 3 month trial basis. He said that he was fully aware that the complainant was pregnant when the trial period commenced. It was agreed that she would be paid out of her earnings a 100% at first but as she built up her client base he would talk to her about giving her a concession. He knew that the complainant was pregnant at the time she started work and he agreed to backdate her PRSI to January so that she would qualify for maternity benefit but she did not start work until March. He said that the bookings were arranged through the manager and also customers who wanted their nails done were referred from another beauty salon which was upstairs in the premises. He said that the complainant was given a number of warnings about her time keeping and her failure to serve customers as per their appointments and this was creating a negative impact on the reputation of his business. The complainant was given a further warning about her time keeping and failure to keep appointments.
4.2 Following these warnings, the complainant and some family members attended the hairdressing salon and began to shout and argue in front of customers. He said that the behaviour was extremely abusive and disturbing and he reported the incident to an Garda Síochána. He said that he was depressed following the incident and he had to get medication from his doctor. After this it was impossible for the complainant to continue working out of the premises and he decided to close the beauty room and he continued to operate as a hairdressing salon only. He said that he had a final written warning prepared on the 28th of July 2009 after the complainant failed to keep an appointment with a customer. He said that she telephoned the salon to say she was sick and then sometime later that day she came to the salon and collected some of her materials. He said that he telephoned her about the appointment and she refused to take it saying that she was sick. He decided to give her a written warning but she did not come in to the salon to collect it and on the advice of his solicitor he did not post it to her. He waited until after the baby was born to issue her with a letter of dismissal a final written warning and her P45.
4.3 He said that he dismissed the complainant because of her discipline, the quality of her work, customer service and she had been given two written warnings. He had given her many invitations to come to the salon to accept a final written warning but she failed to come in and this was the reason she got a final written warning and a notice of dismissal together in October 2009. He said that he did not accept that the complainant was ill in July but he did accept that she was quite large with her pregnancy and that she had difficulties doing some of the work. He arranged with her that she had only to attend the salon when customers were booked in and if there were no customers she could start later or finish earlier. He said that he did not like the complainant smoking in front of customers because she was pregnant and he broke up her cigarettes. He accepted that the complainant only smoked in the designated smoking area. He said that he would never discriminate against a pregnant woman and pregnancy was not the reason for her dismissal. Since then he has had a number of pregnant employees and he submitted that he treated them very well and this was supported in evidence by an employee who had been on maternity leave.
4.4 Ms. B, the salon manager, said that she and the respondent set up the business together and it opened in December 2008. She is responsible for staff matters in the salon. She was introduced to the complainant through a good friend of hers. The complainant came to the salon seeking work and while they were not looking for staff at the time they decided to take her on to do nails. Following discussions with the accountant it was decided to pay the complainant's PRSI from January 2009 so that she would qualify for maternity benefit but she did not start work until March. She said that as a favour that she made her an employee of the company. The complainant told her that she was qualified to do nails but she was not qualified to do nail extensions. She said that her best friend in England was teaching her. She had qualifications to do other beauty procedures such as manicures. She told the complainant that she was not allowed to do nail extensions because she was not satisfied that she was qualified.
4.5 She said that she kept a friendly relationship with the complainant until her friends started coming into the salon and chatting with her in the Latvian language. Her mother also came in. She asked her mother to leave and she told the complainant she could not have her friends visiting and talking in a foreign language in front of customers. She said that the complainant argued with her and said that because she was pregnant she could decide when to come to work and when to leave. She said that the first couple of weeks the complainant tried hard and she worked well and then she started failing to turn up for appointments. She would ring in very late to say she was not turning up. She said that the complainant provided medical certificates but sometimes she handed them in after a week's absence from work. She said that she warned her several times about her discipline, having her friends in the salon, her attitude and having no respect for her.
4.6 On the 28th July 2009 the complainant had an appointment with a customer and she was out sick. She came to the salon and collected some of her materials and when the respondent telephoned her to come to attend to the customer she refused and said that she was attending to a customer at home. Ms. B said that she was aware that the complainant was having a difficult pregnancy but she did not accept that if she was at home sick she could carry out work for her clients and it was decided to dismiss her.
The respondent's solicitor submitted that while there may have been procedural inadequacies in the way the complainant's employment was terminated there was no evidence presented by the complainant to support her contention that the dismissal was solely on the grounds of pregnancy.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 Contract
At the commencement of the hearing the respondent's solicitor said that the respondent was not accepting that the complainant was an employee. However he made no further submission on the matter. I note that Ms. A said in evidence that the complainant was an employee. There was no written contract of employment however I am satisfied from the evidence of both parties that the complainant had a verbal contract which was a contract of service and that I have jurisdiction in the case.
5.2 Substantive Issue
The complainant's case is that she was discriminated against by the respondent in relation to her conditions of employment and dismissal on the grounds of gender in terms of Section 6(2)(a) of the Employment Equality Acts, 1998 - 2011, contrary to Section 8 of that Act. In making my decision I have taken into account all of the evidence, both written and oral, made to me by the parties. Section 6(2A) provides:
6(2A) "Without prejudice to the generality of subsections (1) and
(2), 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."
And Section 8 provides in relation to conditions of employment
8(6) Without prejudice to the generality of subsection (1), an
employer shall be taken to discriminate against an employee or prospective
employee in relation to conditions of employment if, on any
of the discriminatory grounds, the employer does not offer or afford
to that employee or prospective employee or to a class of persons of
whom he or she is one --
(a) the same terms of employment (other than remuneration
and pension rights),
(b) the same working conditions, and
(c) the same treatment in relation to overtime, shift work, short
time, transfers, lay-offs, redundancies, dismissals and disciplinary
measures,
as the employer offers or affords to another person or class of persons,
where the circumstances in which both such persons or classes
are or would be employed are not materially different.
The matter I have to consider is whether the complainant was discriminated against in relation to her conditions of employment and dismissed for reasons connected with her pregnancy.
5.3 Section 85A of the Employment Equality Acts, sets out the burden of proof necessary in claims of discrimination. It provides "Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary."
It requires the complainant to establish, in the first instance, a prima facie case of discrimination, that is, facts from which it can be established that she suffered discriminatory treatment on the gender ground. It is only when she has discharged this burden to the satisfaction of an Equality Officer that the burden shifts to the respondent to rebut the prima facie case of discrimination raised.
5.4 The complainant's case is that the respondent requested her to attend work while she was out with a pregnancy related illness, he refused to sign her maternity benefit form and he dismissed her without good reason on the 22nd of October 2009 following the birth of her baby. The respondent submits that the complainant was dismissed for her conduct and for reasons of conduct and unconnected with her pregnancy
5.5 I note that The European Court of Justice in Dekker v Stichting Vormingscentrum Voor Jong Volwassen (VJV Centrum) Plus 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 Directives , even though there may be no male comparator, and this is set out in section 18(1)(b) of the Employment Equality Acts, 1998-2008. Article 10(2) of EU Directive 92/85/EEC states that where workers are dismissed during pregnancy the employer must cite substantiated grounds in writing for the dismissal. The Labour Court followed this approach in the case of A Company and A Worker, ED/01/1 , "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."
5.6 The European Court of Justice in Brown v Rentokil held that the entire period of pregnancy and maternity leave is a specially protected period during which both the EU Equal Treatment Directive and the EU Pregnancy Directive prohibits dismissal on the grounds of pregnancy. It held that the dismissal of a pregnant employee during that period can only occur in exceptional circumstances and for reasons unrelated to the pregnancy or maternity. I am satisfied that the complainant had notified the respondent of her pregnancy and that he was aware that she was on sick leave at the time he made up his mind to dismiss her. The respondent accepted in evidence that he had a medical certificate but he was of the view that it was not genuine. He believed it was not genuine because the complainant was working at home while on sick leave a contention the complainant's rejects. I note that the complainant received both a final written warning and a notice of dismissal about ten days after she gave birth. She received no final warning prior to her dismissal and therefore she was not given an opportunity to improve prior to the decision taken to dismiss her. Applying the above cited case law this information is sufficient to establish a prima facie case and to discharge the burden of proof on the complainant. Therefore the burden of proof shifts to the respondent to rebut the inference of discrimination raised.
5.7 The respondent denies that he dismissed the complainant for reasons connected with her pregnancy and he set out the reasons at paragraphs 4.1 to 4.6 above. I note that the respondent said that the complainant was on a three month trial which would have ended at the latest at the end of June but he did not dismiss at the end of that period. I have to accept therefore that the complainant's performance was satisfactory up to the end of her trial period. The respondent stated that he gave the complainant two verbal warnings one for the fact that she did not have qualifications in respect of nail extensions and the other was in respect of having her friends and family in the salon talking in their native Latvian language. I note in the final written warning letter the respondent states that he warned the complainant on the 23rd and the 25th June for failing to come to work and to keep the disciplinary rules. The final written warning which was dated the 30th of July 2009 was in respect of poor performance specifically for her failure to perform work assignments in a timely manner. It went on to warn her about the fact that she was out sick and that she had an appointment and that she had collected some materials from the salon to attend to a customer in her home. The complainant stated that she was told to collect her materials from the salon during her sick leave.
5.8 I note in the evidence presented by the respondent that he said he made up his mind to dismiss the complainant following a phone call he had with her in or about the 28th of July. It appears that the decision to give the complainant a final written warning and to dismiss her were made on the same day. The letter of dismissal stated that since the complainant went out sick and did not come back there has been no income from the beauty side of the business that she had received two verbal warnings and the fact that her family and friends called to the salon and their behaviour was unacceptable. He also informed her that she had to make doctors appointments outside working hours. It is clear from the evidence that the complainant was on pregnancy related sick leave when the respondent composed a final warning which was not given to her because she was out sick. It is also clear that the decision to dismiss was taken after she told the respondent she could not keep the appointment because she was sick. The respondent believed that she was working for private clients during her sick leave and while there was a conflict of evidence in relation to this, I accept the complainant was sick and could not keep the appointment which subsequently led to her dismissal. I note from the respondent's disciplinary rules and procedures that there are four stages to the disciplinary process: Stage 1- verbal warning, Stage 2 - first written warning, Stage 3 - final written warning and Stage 4 - dismissal. I accept that the respondent may have had reason to invoke the disciplinary measures against the complainant, but he failed to follow his own procedures and nothing was put in writing to the complainant as required by Stage 2 of the process before invoking the Stage 4 dismissal process. The respondent said that the complainant failed to come into the salon to collect the final warning and this was the reason it was given to her with the dismissal letter. The complainant was not given an opportunity to improve her performance after the respondent decided to write the final warning and before she was dismissed. In any event the complainant was on pregnancy related sick leave and then maternity leave and did not return to work before she was dismissed so she had no opportunity to improve her performance before she was dismissed. I am satisfied therefore that the respondent dismissed the complainant because of her pregnancy related sick leave and he did not implement that decision until after the complainant had her baby. I find therefore that the respondent has failed to rebut the prima facie case of discriminatory dismissal raised by the complainant. In the circumstances the respondent has failed to demonstrate that there were any exceptional circumstances not associated with the complainant's pregnancy to justify the dismissal. Accordingly, I find that the respondent dismissed the complainant in circumstances relating to her pregnancy and this amounts to discrimination on the gender ground under the Employment Equality Acts. Therefore the claim on the gender ground succeeds.
6. DECISION OF THE EQUALITY OFFICER.
6.1 On the basis of the foregoing, I find that the respondent discriminated against the complainant on the gender ground in terms of section 6(2)(a) and dismissed her for reasons connected with her pregnancy contrary to section 8 of the Employment Equality Acts 1998-2011.
6.2 Section 82-(i)(c) of the Act provides that I can make an order for the effects of the discrimination. The maximum award I can make under Section 82(4) is two years pay which in this case is in the region of €22,464. The EU Directives require sanctions for a breach of the principle of equal treatment to be effective, dissuasive and proportionate. I consider that an award in the amount of €7,000 is appropriate.
6.3 I therefore, in accordance with my powers under section 82 of the Employment Equality Acts, order the respondent to pay the complainant €7,000 in compensation for the effects of the discriminatory treatment. This figure represents compensation for the infringement of her rights under equality legislation in relation to discrimination and does not include any element relating to remuneration, and therefore it is not taxable.
______________________________
Marian Duffy
Equality Officer
17th July 2012