THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2011
(represented by Cathy Hamilton B.L. instructed by Romaine Scally & Co. Solicitors)
Paul Anderson trading as Hair by Suzanne
(represented by Bernadette Kirby B.L. instructed by Becker Tansey & Co.)
File Ref: EE/2009/642
Date: 7th August 2013
Keywords: Constructive Dismissal or Voluntary Resignation, Employment Equality Acts, Gender, Family status, Civil Status, Discriminatory dismissal, Pregnancy, Access to employment, Conditions of employment, No prima facie case
1.1 The case concerns a claim by Ms. Karen Mills that Hair by Suzanne discriminated against her in relation to access to employment, conditions of employment leading to dismissal on the grounds of gender, civil status and family status contrary to Section 8 of the Employment Equality Acts 1998-2011 [hereinafter referred to as 'the Acts']. She is also claiming harassment on the same ground within the meaning of 14A of the Acts.
1.2 The complainant referred a complaint under the Act to the Director of the Equality Tribunal on the 2nd October 2008. On 12th January 2011, in accordance with his powers under Section 75 of the Act, the Director delegated the case to me, Orlaith Mannion, 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 this date, my investigation commenced. Submissions were received from both parties and a joint hearing was held on 30th November 2011 as required by Section 79(1) of the Act.
Summary of the complainant's case
2.1 Ms Mills commenced her employment as a full-time trainee hairdresser at the respondent's salon in Firhouse having already competed her first year of hairdressing in studies in Crumlin College in 2005. She was the only full-time junior hairdresser employed there. Her hours of work were 9:30 to 5:30 four days a week and from 11:30 to 7:30 one evening a week. She was paid €220 per week which rose to €250 after one year.
2.2 The complainant became pregnant in 2007 and she submits that she agreed with her employer that her maternity leave would begin on 20th October 2007 and that she would return from maternity leave six months later to work full-time.
2.3 Her General Practitioner certified her as unfit to work from August 2007 due to oedema [swelling] in the legs. Standing for long periods of time, as required by her job, would exacerbate this. She submits that prior to leaving she confirmed with the respondent her intention to return to full-time work on or about 20th April 2008.
2.4 She submits that she returned to work on a part-time basis in March 2008 with the respondent as a 'half-way house' to returning to full-time employment. On 8th April 2008 she maintains that she had a conversation with the respondent indicating that she intended to retune to her full-time position on 24th April. She maintains that he said that he had' presumed' that she would not return to full-time work and that all he could offer her was weekend work i.e. working Friday and Saturday. Such a position, the complainant submits, would not allow the Ms Mills to earn a sufficient amount to maintain herself and her or to complete her training. Therefore, she declined to return on those terms and is claiming constructive discriminatory dismissal. She submits that a junior hairdresser had been employed in her absences on maternity leave and he was not willing to let the new employee go.
2.5 She submits that she was a reliable and hardworking employee and that she never received any complaints regarding her work. Nor did she receive any verbal or written warnings. At the time of the hearing, she was in receipt of Jobseekers Benefit.
2.6 The complainant cites Fearn v Emerald Contract Cleaners as an authority.1
Summary of the respondent's case
3.1 Mr Anderson is the proprietor of Hair by Suzanne for 13 years. The respondent submits that Ms Mills was employed on the premise that she would continue her training with Crumlin College. She did not do so. Despite this, the respondent did increase her salary to €250 after a year and that she also received tips from clients.
3.2 The respondent accepts fully that it was agreed that she would take maternity leave in Autumn 2007 and return in April the following year. He also accepts that, on medical advice, she took early maternity leave in August 2007. The respondent submits that while she was pregnant he and his daughter (who managed the salon) advised Ms Mills to take rest breaks throughout the day. One of the part-time junior assistants was offered full-time work while the complainant was on maternity leave. The respondent submits that it was made clear to the other junior assistant that she would return to part-time work when Ms Mills returned.
3.3 However, where the respondent's evidence differs is that at the beginning of April 2008, Mr Anderson submits that Ms Mills rang Mr Anderson and said that she could not return to work fulltime as she did not have anybody to mind her baby during the day. She asked if she could work on Fridays and Saturday and Mr Anderson agreed to this. At the hearing other members of staff gave evidence that Ms Mills told them that she did not intend working full-time after she returned from maternity leave. The respondent submitted a letter from a client who stated in the letter that Ms Mills said to her that she did not intend returning to work full-time after the end of her maternity leave. Mr Anderson submits that at no time prior to this did he assume that she would not be working full-time after her maternity leave.
3.4 The arrangement of working part-time on Friday and Saturday continued for 4 weeks. On Saturday 19th April 2008 Mr Anderson submits that Ms Mills approached him and asked him to sign the following note:
17th April 2008 (sic)
To Whom It May Concern,
I Paul Anderson, having been Karen's employer from Aug 2005, up until her maternity leave, cannot give her intilted(sic) 40 hours. I am however in a position to give her Fridays and Saturdays.
Mr Anderson readily accepts he signed the note and included his mobile phone number on it. He submits that the salon was busy so did not ask her what she wanted this note for. Later that afternoon, Ms Mills informed Ms Anderson that she was resigning completely i.e. giving up the part-time work. No explanation was given.
3.6 The respondent states he is aware of the protections in employment law to pregnant women and many women in his employ had babies and returned to work (full-time) for him. He said he is anxious to retain staff as clients prefer it and would not have let Ms Mills go except that she sought it. He submits that he was confused when she resigned. As far as he was concerned she sought part-time work, he gave it to her and she still resigned.
Conclusions of the Equality Officer
4.1 There are three issues for me to decide
(i) whether the complainant is entitled to succeed in her complaint regarding access to employment contrary to 8 (1)(a) of the Acts on the grounds of gender, family status and marital status
(ii) whether the complainant was discriminated regarding conditions of employment contrary to 8 (1)(b) of the Acts on the grounds of gender, family status and marital status
(iii) whether the complainant was discriminatorily dismissed on the grounds of gender contrary to Section 8(6)(c) of the Acts.
4.2 In reaching my decision I have taken into account all of the submissions, written and oral, made by the parties. 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. The complainant maintains that she was also discriminated because she was single (marital status) and became a mother (family status) while in the employ of the respondent.
4.3 Section 85A of the Act 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 was discriminatorily dismissed. 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.
Access to Employment
4.4 A complaint under access to employment refers to the recruitment stage of a working relationship i.e. pre-employment. It is common case that Ms Mills was an employee of Hair by Suzanne from August 2005 until April 2008. Therefore, her complaint under 8 (1)(a) of the Acts must fail as she could not be denied access to employment when she was already an employee of the respondent.
Conditions of Employment
4.5 No evidence was adduced of how the complainant was treated less favourably regarding her conditions of employment because she was single, female, pregnant and/or became a mother. Therefore, her case under 8 (1) (b) fails.
4.5 Where this case turns on is whether the complainant's employment was terminated by dismissal (constructive or otherwise) or resignation. It is common case that the complainant returned to work in March 2008 on a part-time basis (weekends only). Where there is a conflict of evidence is the respondent submits that the complainant requested to work on a part-time basis following her maternity leave and he was happy to facilitate her wishes while the complainant maintains that only part-time work was offered to her and that she had no choice but to resign (constructive dismissal). In relation to the credibility of the witnesses, I found the complainant to be evasive and inconsistent while both Mr Anderson and his daughter were credible even with aspects of testimony that did not assist their case.
4.6 A crucial piece of evidence is the note at Paragraph 3.4. On first reading, it does not support the respondent's version of events. However, in direct evidence, Mr Anderson said he was given this note to sign on a busy Saturday and he did not look at it properly. While it certainly was not prudent of an employer to sign something without considering its consequences, I found him to be a truthful witness. One only needs to attend a hair salon on a Saturday to realise it is not the opportune time for an employee of same to have a considered conversation with their employer about their employment. It is accepted by both parties that Ms Mills resigned the afternoon after this note was signed. The respondent provided in evidence a letter by a client stating that Ms Mills had informed her that she did not intend working full-time when she returned from maternity leave. While this does not have the same evidential value as direct evidence, neither can it be ignored entirely. There were also no economic reasons for the respondent to give the complainant part-time hours as when she resigned, he offered full-time work to an other junior assistant. In direct evidence, the respondent said that hair salons suffer less in a recession than other businesses.
4.7 The complainant's relevant social welfare records were provided. Ms Mills's State Maternity Benefit ran out on 18th April 2008 (day before she resigned). The complainant was in receipt of Jobseekers Benefit from 24th April 2008. Applicants for Jobseekers Benefit are usually disqualified for nine weeks, if s(he) leaves employment voluntarily.2 Deductions are made from Jobseekers Benefit if s(he) works part-time. Based on the totality of the evidence, I am satisfied that the complainant had no intention of returning to work for the respondent on a full-time basis following her return from maternity leave. When her Maternity Benefit was running out, she was aware that if she resigned voluntarily from her employment she would receive no state payment (other than children's allowance) for 9 weeks. Therefore the evidence points to that it was in her interest to manipulate what was essentially a voluntary resignation into a claim of constructive dismissal. In my role as Equality Officer, this is not the first time that I have come across an employer being persuaded to sign a declaration that does not reflect the reality of the ending of an employment relationship. This action can have very negative implications (not only in defending a case in this Tribunal) for an employer and should be avoided.
4.8 The entire period of pregnancy and maternity leave constitutes a special, protected period as outlined in the European Court of Justice Decisions in Webb v EMO Air Cargo (UK) Ltd 3, Dekker v Stichting Vormingscentrum4, Brown v Rentokil Ltd5 and. In Brown v Rentokill Ltd the Court of Justice of the European Union explains why pregnancy is a special protected period:
Article 2(3) of Directive 76/207 recognises the legitimacy, in terms of the principle of equal treatment, first, of protecting a woman's biological condition during and after pregnancy and, second, of protecting the special relationship between a woman and her child over the period which follows pregnancy and childbirth.
It was precisely in view of the harmful effects which the risk of dismissal may have on the physical and mental state of women who are pregnant, women who have recently given birth or women who are breastfeeding, including the particularly serious risk that pregnant women may be prompted voluntarily to terminate their pregnancy, that the Community legislature, pursuant to Article 10 of Council Directive 92/85/EEC of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding (tenth individual Directive adopted within the meaning of Article 16(1) of Directive 89/391/EEC) (OJ 1992 L 348, p. 1), which was to be transposed into the laws of the Member States no later than two years after its adoption, provided for special protection to be given to women, by prohibiting dismissal during the period from the beginning of their pregnancy to the end of their maternity leave. [my emphasis]
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'.6 It is also unlawful to dismiss a person because of their civil status or family status.
4.9 Dismissal within the meaning of the Acts includes constructive dismissal i.e. where the conduct of her employer the circumstances were such that it would be reasonable for the complainant to terminate her contract of employment. However I do not find that to be the case in this scenario. Towards the end of her maternity leave, the complainant sought and received part-time work. The respondent facilitated this request although his preference would be to retain her as a full-time employee as he said that clients like to deal with the same people. The complainant resigned. I do not find the circumstances to be so unreasonable that Ms Mills can claim constructive discriminatory dismissal on the grounds of gender, civil status or family status. In common with the Labour Court case Blackrock Inns Ltd t/a Rochestown Hotel and Ingride Matuleviciene I do not find a dismissal occurred.7
I have concluded my investigation of Ms. Mills's complaint and hereby make the following decision in accordance with Section 79(6) of the Employment Equality Acts 1998-20011. I find that
(i) the complainant has failed to establish the facts from which it may be presumed that she was discriminatorily treated regarding access to employment on the grounds of gender, civil status or family status
(ii) the complainant has failed to establish a prima facie case that she was treated less favourably regarding her conditions of employment on the grounds of gender, civil status or family status
(iii) The complainant has failed to establish that she was discriminatorily dismissed (constructive or otherwise) on the grounds of gender, civil status or family status.
Therefore I find against the complainant.
7th August 2013
2 http://www.welfare.ie/en/Pages/Jobseekers-Benefit.aspx#disqual9weeks Part 4(b)
3  ECR 1-3567
4  ECR 1-3941
5  ECR 1-04185
6 Determination No. EED0213
7 Determination No. EDA124