The Equality Tribunal
Employment Equality Acts
(Represented by Ailionora McMahon, B.L.
instructed by A.B. O'Reilly Dolan & Co, Solicitors)
and Brigita Kalniute & Meile Stanislaviciene
(Represented by Wilkie & Flanagan Solicitors)
- V -
Anglo-Irish Beef Processors t/a Silvercrest Foods Ltd
(Represented by Purdy Fitzgerald Solicitors)
File references: EE/2011/660 & EE/2012/011
EE/2012/013 & EE/2011/638
Date of issue: 1 August 2013
Keywords - Employment Equality Acts - Discriminatory Treatment - Discriminatory Dismissal - Gender - Family Status
1.1 This dispute concerns a claim by the complainants that they were subjected to discriminatory dismissal by the respondent on grounds of Gender, in terms of Section 6 and contrary to Section 8 of the Employment Equality Acts. In addition, the first named complainant cited the Family Status ground, while the third-named complainant also claimed discriminatory treatment and victimisation (under Section 74 of the Acts).
1.2 The complainants referred claims of discrimination to the Director of the Equality Tribunal on 19 September and 21 December 2011, 9 September 2011 and 22 December 2011 reapectively under the Employment Equality Acts. On 4 March, 2013, in accordance with his powers under section 75 of the Acts, the Director delegated the cases to Conor Stokes - an Equality Officer - for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts on which date my investigation commenced. As required by Section 79(1) and as part of my investigation, I proceeded to a hearing on 1 May 2013. All written and oral evidence presented to the Tribunal has been taken into consideration when coming to this decision.
2. SUMMARY OF THE COMPLAINANT'S CASE
2.1 The complainants submitted that they were employed by the respondent and are non-Irish nationals (being from Lithuania). The complainants were all either pregnant or had recently given birth at the time of the termination of the employment relationship and they are taking their complainants on the gender ground. Additionally, the third-named complainant cited the family status ground as a basis for her complaint.
2.2 The complainants submitted that they were dismissed whilst pregnant (or in the case of the first named complainant, having recently given birth). The complainants submitted that this period constitutes a special protected period and that the dismissal amounts to discriminatory dismissal on the gender ground.
2.3 The complainants submitted that the respondent failed to implement their rights to Maternity leave and to payment while on Maternity leave.
2.4 The complainant's submitted that the respondent was implementing a policy of dismissal in circumstances that avoided compliance with the rights of the complainants as pregnant, female employees.
2.5 The complainant's submitted that the respondent failed to renew their fixed term contracts due to pregnancy or to pregnancy related illness.
2.6 The complainant's submitted that the respondent treated the complainant's less favourable than other employees due to their gender by dismissing them.
2.7 The complainants cited cases from the Tribunal and the Court of Justice of the European Union including the Tele Danmark case (C-109/00) and the Melgar case (C438/99) in support of their argument.
3. SUMMARY OF THE RESPONDENT'S CASE
3.1 The respondent submitted that the complainants were not dismissed on the basis of pregnancy or at all, rather their fixed term contracts came to an end.
3.2 The respondent submitted that the termination of the contracts had nothing to do with pregnancy and that the complainant's were part of a group of fifteen employees whose fixed term contracts came to an end and finished employment on the same day.
3.3 The respondent submitted that this group of fifteen employees comprised males and females, four of whom were pregnant, some had children already, others did not.
3.4 The respondent submitted that the complainants were all on fixed term contracts which came to their natural end and that this does not amount to a dismissal of the complainants.
3.5 The respondent submitted a list of the employees whose contracts came to an end on the same day as the complainants, including their gender. The respondent also submitted copies of the complainant's contracts showing that they were working under fixed term contracts.
4. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The issue for decision by me is whether or not the respondent subjected the complainants to discriminatory treatment, discriminatory dismissal, and victimisation, on the basis of gender and family status, in terms of Sections 6 and 74 of the Employment Equality Acts, and contrary to Section 8 of those Acts.
4.2 Section 85A of the Employment Equality Acts sets out the burden of proof which applies to claims of discrimination. It requires the complainants to establish, in the first instance, facts from which discrimination may be inferred. 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.
4.3 The complainants gave evidence that they did not sign or were shown contracts and that none of the terms and conditions were explained to them in a language that they understood. When they were shown their signed contracts they confirmed that it was their signatures on the bottom but did not know how it had got there. The complainants suggested that they had been asked to sign blank pages and that these may have been used to make up contracts after the fact. The complainants also gave evidence that they were not told that their contracts were for a fixed term only.
4.4 Two witnesses gave evidence at the hearing as regards the provision of contracts, and what level of Lithuanian was used in explaining contracts and work processes to the workers. The evidence given by the witnesses was not consistent, one witness, Ms X, said that they didn't know that the contracts would end but then went on to say that they know that it would be short term but just didn't know when it would end. She went on to say that everyone was the same. She also said that she was given something to sign but that it was in English only. The other witness, Mr Y, said that although there was no signed contract, terms and conditions were explained to him in Lithuanian. He added that there was no person in the HR section who could speak Lithuanian.
4.5 The complainants and witnesses agreed that a number of people, not just the complainants finished up on the same day.
4.6 The respondent pointed out that the complaint being heard related to gender and family status and that the first mention of a race ground was made in the complainant's submissions which were received outside the time limits envisaged by the Acts. This point was not contested by the complainants. I am satisfied that this is the case in relation to one of the complainant's who appears to have raised the race ground in her submission, which was received outside the time-limits envisaged by the Acts. In relation to the other two complainants, they seem not to have raised any issue of the race ground until giving evidence in the hearing. Accordingly, I am satisfied that I am constrained to deciding these matters on the grounds of Gender for all three complainants and additionally on the Family Status ground for the first-named complainant.
4.7 The written evidence presented to the Tribunal substantiates the respondent's claims that the complainants were on fixed term contracts and whilst the oral evidence may indicate a lack of clear and cogent HR practices and procedures, I am satisfied that working relationships of the complainants and twelve other workers came to an end due to those contracts expiring. I am also satisfied that the complainants were pregnant or in the case of one of them, had recently given birth, at the time of the end of the employment relationship.
4.8 In the case of Tele Danmark, the Court of Justice of the European Union has ruled that "the fact that a worker has been recruited by a very large undertaking which employs temporary workers frequently is of no relevance to the interpretation of Article 5(1) of the Directive 76/207 and Article 10 of Directive 92/85". Simply put, the special protected period, which has been established as a matter of settled law, and that prohibits dismissal while pregnant or on Maternity leave, save in exceptional circumstances, applies to a woman whether she is on a permanent or a fixed-term contract.
4.9 However, in the case of Melgar, issued by the Court of Justice of the European Union on the same day as the Tele Danmark judgement above, the court ruled that "whilst the prohibition of dismissal laid down in Article 10 of Directive 92/85 applies to both employment contracts for an indefinite period and fixed-term contracts, non-renewal of such a contract, when it comes to an end as stipulated, cannot be regarded as a dismissal prohibited by that provision. However, where non-renewal of a fixed-term contract is motivated by the worker's state of pregnancy, it constitutes direct discrimination on grounds of sex, contrary to Article 2(1) and 3 (1) of Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion and working conditions."
4.10 No cogent evidence has been presented to me that the complainants were dismissed for reasons connected with their pregnancy or maternity leave or that the non-renewal of the complainant's contracts was so related. In fact the evidence points to the opposite, particularly when the number and gender of those laid-off are considered. Therefore, the complaints based on the Gender ground must fail.
4.11 No cogent evidence was presented to me that one of the complainants was let go on the basis of the family status ground and this element of that complaint must likewise fail.
4.12 No evidence was presented to me that one of the complainants was subjected to victimisation, as defined by the Acts, and this element of that complaint must similarly fail.
5.1 Having considered all the written and oral evidence presented to me, I find that the complainants has not established a prima facie case of dismissal on the gender ground and this element of their complaints fails.
5.2 Having considered all the written and oral evidence presented to me, I find that the first-named complainant has not established a prima facie case of dismissal on the family status ground and this element of her complaint fails.
5.3 Having considered all the written and oral evidence presented to me, I find that the third named complainant has not established that she was subjected victimisation and this element of her complaint fails.
1 August 2013