The Equality Tribunal
Employment Equality Acts 1998-2011
DECISION NO: DEC-E2013-096
MS. NATALIA POPLAWSKA
(Represented by Mr Frank Crean B.L
instructed by O'Hanrahan and Company Solicitors)
MOORE CLEANING SERVICES
(Represented by Mr Christy O'Driscoll)
File No: EE/2011/015
Date of issue 15th August 2013
This dispute involves a claim by Ms. Natalia Poplawska (hereafter called "the complainant") that she was discriminated against by Moore Cleaning Services (hereafter called "the respondent") on grounds of gender, family status, marital status and disability, in terms of section 6 of the Employment Equality Acts, 1998-2011 and contrary to section 8 of the Acts in relation to training, conditions of employment and dismissal.
2.1 The complainant commenced employment as a cleaner with the respondent in January 2009. In June 2009 the complainant submits that she notified the respondent that she was pregnant, shortly before she went on a four month medical absence, leading directly into her maternity leave beginning in November. The complainant states that while on maternity leave she was informed by the respondent that she had left employment. The respondent submits they were not on notice of the pregnancy, illness or maternity leave and that the complainant left employment of her own accord.
2.2 The complainant referred a complaint under the Employment Equality Acts, 1998 and 2011 to the Equality Tribunal on the 17th January 2011. On the 2nd May 2013, in accordance with his powers under the Acts the Director delegated the complaint to me, Mr. Peter Healy, an Equality Officer for investigation and decision and for the exercise of other relevant functions under Part VII of the Acts. Submissions were received from both parties and a hearing of the complaint took place on the 17th May 2013. Final submissions were received on the 30th of June 2013.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 The complainant commenced employment with the respondent on or about the 6th January 2009. The complainant states that she initially worked 1.5 hours a day, five evenings a week servicing a dental clinic.
3.2 The complainant submits that in June 2009 she notified the respondent that she was pregnant. She states she did this by giving a medical certificate to another cleaner for onward transmission to a supervisor as it was her understanding that this was the accepted channel of communication.
3.3 The complainant submits that shortly after notifying the respondent of her pregnancy that she was asked to work an additional contract of 2.5 hours a day in the mornings at a new location, resulting in a four hour day.
3.4 The complainant submits that on or about the 17th July 2009 that she experienced back pain whilst at work and that she notified her supervisor before leaving work. She states that on the following Monday, she submitted a letter to the respondent requesting Health and Safety benefits and completion of maternity leave documentation together with an enclosed medical certificate. The complainant states that she sent in three more medical certificates to the respondent to cover the full period of her four month absence.
3.5 The complainant states that she was on maternity leave from 17th November 2009 to the 30th May 2010 and that prior to these dates was on sick leave due to work related back pain.
3.6 The complainant states that while she was on maternity leave that she wrote to the respondent to request holiday pay entitlements for the 2009 year related to maternity leave. The complainant submits that in response to this request that the respondent sent an E-mail to the complainant on the 14th April 2010 asserting that the complainant was no longer an employee since the 19th July 2009, that the respondent had not been notified of the pregnancy and knew nothing of the complainants' requests for maternity leave, sick leave or health and safety benefits. The complainant submits that the same E-mail stated that she had no entitlement to holiday pay as she had left employment voluntarily on the 19th July 2009 and that her employment had ceased on that date.
3.7 The complainant states that she then sent an E-mail on the 1st June 2013 to the respondent seeking to resolve the issue, find out if her previous correspondence had been received by the respondent and requesting a P45. The complaint states that the only response was an instruction to request her P45 in writing and that thereafter she received same on the 6th June 2010 backdated to 17th July 2009.
3.8 The complainant submits that she was treated less favourably as she was denied her holiday entitlements for 2009. She submits that if she had not been on maternity leave she would have received her entitlements.
3.9 The complainant submits that she was treated less favourably as she was dismissed from her employment. She argues that if she had not been pregnant, her employment would not have been terminated.
3.10 In relation to disability the complainant submits that the injury occurred three weeks after she had started working the four hour day pattern but that for much of her service she had been working a 1.5 hour day. The complaint argues that the short length of time on the four hour pattern made the respondent less responsive to her requests for holiday entitlements
4. SUMMARY OF RESPONDENT'S CASE
4.1 The respondent rejects the complainant's assertion that her dismissal was connected to any of the grounds of discrimination advanced. It states the only reason her employment ended is that the complainant did not return
4.2 The respondent submits that the complainant received appropriate training and submitted documentation to that effect.
4.3 At the hearing the respondent submitted that they and specifically the supervisor had never been informed of the complainant's pregnancy.
4.4 The respondent submits that on the 17th of July 2013 that the complainant called her supervisor to say that she would be out sick for two weeks and the respondent says that the complainant did not follow up with any medical certificates.
4.5 The respondent submits that the relevant supervisor made many phone calls to the complainant to ascertain when she would be returning to work. The respondent states that as no contact was made by the complainant that they assumed the complainant had left employment.
4.6 In the final submission the respondent agrees that a maternity leave certificate was received from the complainant on the 28th July 2013 and signed for leave to begin on the 17th November 2009 providing that the complainant would still be employed at that time.
4.7 The respondent states that the next communication they had from the complainant was in January 2010 when she phoned requesting holiday pay. The respondent states that they informed the complainant it was there understanding that according to their timesheets that she had finished work on the 17th of July 2009.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 In a written submission in advance of the hearing the complainant dropped the grounds of marital and family status. The complainant provided no evidence in relation to training. Therefore the issue for decision by me is whether or not the complainant was dismissed by the respondent in circumstances amounting to discrimination, on grounds of gender and disability, in terms of section 6 of the Acts and contrary to section 8 of the Acts. In reaching my decision I have taken into consideration all of the submissions, oral and written, made to me by the parties as well as the evidence given by the witnesses at the hearing.
5.2 Section 85A of the Employment Equality Acts 1998 and 2004 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 the she suffered discriminatory treatment. It is only when those facts have been established and are regarded by an Equality Officer as sufficient to raise an inference of discrimination that the onus shifts to the respondent to rebut the inference of discrimination raised.
5.3 In a line of authorities starting with the judgement in Dekker v Stichting Vormingcentrum voor Junge Volwassenen 1the Court of Justice of the European Union (formerly the ECJ) has consistently held that since pregnancy is a uniquely female condition any less favourable treatment of a woman on grounds of pregnancy is direct discrimination on grounds of gender. Since this judgement the protection afforded to pregnant women in employment has been strengthened considerably in the caselaw of the CJEU and in the legislative provisions of the European Union. In Brown v Rentokil 2 the CJEU held that the entire period of pregnancy and maternity leave was a "protected period" during which the Pregnant Worker's Directive3 prohibits dismissal of an employee for pregnancy related matters. The Court restated this position more recently in Danosa v LKB Lizings SIA4 when it held " ...pursuant to Article 10 of Directive 92/85, the EU legislature provided for special protection for women by prohibiting dismissal during the period from the beginning of pregnancy to the end of maternity leave.". The Court went on to say "During that period Article 10 of Directive 92/85 does not provide for any exception to, or derogation from, the prohibition on dismissing pregnant workers, save in exceptional cases not connected with their condition, provided the employer gives substantiated grounds for the dismissal in writing.".
5.4 In the light of these CJEU judgements it is clear that where a pregnant employee is dismissed the employer must bear the burden of proving that the dismissal was based on exceptional circumstances unrelated to pregnancy or maternity. Hence, in every case where pregnancy related dismissal is in issue, the factual combination of the dismissal and the woman's pregnancy must, in and of itself, place the onus of proving the absence of discrimination firmly on the employer.
5.5 In the instant case there is documentary evidence dated the 28th July 2009 that the respondent was aware of the complainant's pregnancy and her planned maternity leave. This evidence was presented during the hearing by the complainant and was subsequently confirmed by the respondent as being valid. I am therefore satisfied that the complainant had advised the respondent, at the appropriate time, that she was pregnant. Consequently, the burden of proof shifts to the respondent to satisfy the Tribunal, on balance of probabilities, that there were exceptional circumstances unconnected with pregnancy or maternity, which discharge that burden.
5.6 The respondent maintained at the hearing that they were unaware of the complainants' pregnancy but subsequent uncontested evidence demonstrates that they were. I believe this reflects poorly on the creditability of the respondent in relation to claims that they did not receive other communications from the complainant. As almost no documentary evidence or records were presented by the respondent in relation to any action taken regarding the complainants' departure from the company, I find it less than probable that the respondent can state with any certainty that they did not receive the series of medical certificates that the complainant states she sent by post in the period before her maternity leave.
5.7 In relation to conditions of employment I find that the complaint has not presented a prima facia case as her evidence in the tribunal was that she was happy to be given extra hours following the announcement of her pregnancy.
5.8 Oral evidence was presented to the Tribunal by both parties. From that evidence and the documentary evidence presented, I am satisfied that the following has been established as being the relevant facts:
- The respondent had been appropriately notified of the respondent's pregnancy and planned maternity leave.
- The complainant was medically certified as unfit for work for the full period of illness before her maternity leave.
- The respondent took no action when they say they believed the complainant had left employment and issued no documentation and certainly no written letter of dismissal.
- The complainant took no action which would contribute to the termination of her contract of employment.
- Eventually, the respondent issued a P45 backdated to 17th July 2009 and that this is the date on which they considered her employment to be finished. However, they did not communicate this to the complainant until 14th April 2010. Both of these dates are within the protected period.
5.9 The respondent has failed to discharge the probative burden required and the complainant's case is therefore entitled to succeed.
6. DECISION OF THE EQUALITY OFFICER.
6.1 I have concluded my investigation of the complaint. Based on all of the foregoing, I find, pursuant to Section 79(6) of the Act, that
a) the respondent discriminatorily dismissed the complainant on the ground of gender.
b) I find that that a prima facie case of discriminatory dismissal on the ground of disability has not been established and this element of the complaint fails.
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. The EU Directives require sanctions for a breach of the principle of equal treatment to be effective, dissuasive and proportionate
5.2 I order the respondent to pay the complainant €10,000 which I consider to be a fair and equitable figure in compensation for the discriminatory treatment suffered. 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.
15th August 2013
3 Council Directive 92/85/EEC
4 Case 232/09