EMPLOYMENT EQUALITY ACTS 1998-2008
Decision - DEC-E2013-079
(Represented by Murphy, Long and Taaffe, Solicitors)
Millipore Ireland BV
(Represented by IBEC)
File Reference: EE//2010/408
Date of Issue: 23 July 2013.
Headnotes: Discriminatory dismissal - Discrimination on the grounds of gender -Dismissal while on maternity leave - Discrimination in recruitment of agency worker-Victimisation - Employment Equality Acts, 1998 to 2008 s 6(2) (A), s 8, s74(2).
This dispute involves a claim by Ms Iwona Koscikiewicz (hereinafter "the complainant") that
(i) she was discriminated against by Millipore Ireland BV (hereinafter "the respondent") on grounds of gender within the meaning of sections 6 (2) (a) and 6 (2) (A) of the Employment Equality Act, 1998 as amended (hereinafter "the Acts") and contrary to section 8 of the Acts when she was dismissed while on maternity leave;
(ii) she was discriminated against on account of her gender in access to employment when she was not re-employed after her maternity leave contrary to section 6 (2) (A) and section 8 of the Acts; and
(iii) she was victimised within the meaning of section 74 (2) of the Acts.
2.1 The complainant referred a complaint under the Acts to the Director of the Equality Tribunal on 26 May 2010. The date of the most recent occurrence of the alleged discriminatory act was 11 November 2009, which was outside the 6 month time stipulated in the Acts, but within the 12 month period for which an extension can be granted, for reasonable cause. The Director, on 6 October 2010 directed that an extension of time to 12 months for the purpose of referring the claim be given in this case.
2.2 A written submission was received from the complainant on 15 November 2011. A written submission was received from the respondent on 23 December 2011. As required by section 79(1) of the Acts and as part of my investigation, I held a hearing of this complaint on 11 October 2012. Both parties attended the hearing.
3. Summary of the Complainant's case
3.1 The complainant commenced employment with the respondent on 21 July 2008 as an Assembly Operator. The initial contract of employment was for a limited period to 26 December 2008 and this was extended in writing on 16 December 2008 to 26 June 2009 and again on 19 March 2009 to 31 July 2009. The complainant was absent from work from 11 May 2009 on maternity leave until 8 November 2009. Prior to the completion of her period of maternity leave the complainant attended with a representative of the HR Department on behalf of the respondent and was advised that there was no work available and that she would not be re-employed. She was shocked and disappointed but took this information at face value and was not offered and did not receive redundancy.
3.2 It then transpired that in the following December or January an employment agency sought others to work as assembly employees and other personnel were approached in relation to the matter. It appears that the only people not approached for this purpose were the applicant and a friend of hers. The Applicant became concerned because both she and the other woman who were not contacted had both given birth in recent times. Consequently the complainant claims that she has been discriminated against by virtue to her having been on maternity leave and has be discriminatorily dismissed, discriminated against in re-employment and victimised.
4. Summary of respondent's case
4.1 The Complainants fixed term contract of employment was not renewed due to the fact that the production line she worked on was moved to China and her contract of employment was not renewed along with 62 other employees of the respondent.
4.2 From 2008 it was emphasised to all new employees employed on certain production lines that their employment would be short term in nature due to the impending transfer of production lines to Asia. This was the reason that the complainant was employed on a fixed term contract. The Complainant started work with the respondent as an assembly operative on 21 July 2008. She was employed on a fixed term contract for 5 months (expiring on 26 November 2008) due to the fact that the respondent intended to move a number of its production lines to Asia. She was advised on 16 December 2008 of renewal of contract to 26 June 2009. The contract letter stated that "this contract is being renewed on a temporary basis to reflect the uncertainty surrounding the portfolio of product lines to be manufactured in the Cork site in 2009". This contract was signed by the complainant and dated 23 December 2008. The complainant was further advised on 19 March 2009 of a further extension to 31 July 2009. This contract stated that "this contract is being renewed on a temporary basis based on manufacturing requirements which will reduce with the upcoming production transfer of our Stericup and Steriflip lines". This contract was signed by the complainant and dated 23 March 2009.
4.3 In early 2009 it was agreed to transfer 2 production lines to China. The total impact was a reduction of 63 in the number of employees. The complainant was among those affected. The respondent decided that the fairest approach in implementing the headcount reduction was to not renew contracts and make employees redundant using selection criteria based on length of service "last in first out". Employees depending on their service were advised of their impending departure dates in either May or July 2009. Those with longer service (including the complainant) had their contracts renewed until 31 July 2009.
4.4 Along with other employees the complainant was well advised in advance that her contract of employment would not be renewed. She was informed in March 2009 that her contract would not be renewed. In addition to all statutory entitlements the complainant continued to receive her maternity "top-up" payment as a good will gesture until the end of her maternity leave on 8 November 2009.
4.5 The respondent stated that the complainant's main grievance is based on the fact that she was not rehired by the employment agency. As the complainant herself said "an employment agency sought others to work as assembly employees and other personnel were approached'. The respondent experienced an unexpected upsurge in demand for certain products the production of which had not been transferred out. This was after the redundancy of the 63 workers employed on the lines transferred to China. Due to the temporary nature of this spike in demand the respondent decided to outsource recruitment activities for its temporary labour to an independent employment agency. This external agency took all decisions regarding recruitment of the temporary staff and those employed in the temporary roles were employees of the external agency.
5. The law
5.1 Section 6 (1) of the Acts provides-
"For the purposes of this Act and without prejudice to its provisions
relating to discrimination occurring in particular circumstances discrimination shall
be taken to occur where --
(a) 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 specified in
subsection (2) (in this Act referred to as the 'discriminatory grounds') which --
(ii) existed but no longer exists,
(iii) may exist in the future, or
(iv) is imputed to the person concerned,
(b) a person who is associated with another person --
(i) is treated, by virtue of that association, less favourably than a person who
is not so associated is, has been or would be treated in a comparable situation, and
(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.
Section 6 (2) (a) provides-
"As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are --
(a) that one is a woman and the other is a man (in this Act referred to as "the gender ground")...
Section 6 (2) (A) provides-
"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."
5.2 EU law provides that Member States shall take the necessary measures to prohibit the dismissal of workers during the period from the beginning of their pregnancy to the end of the maternity leave..., save in exceptional cases not connected with their condition which are permitted under national legislation and/or practice. 1
5.3 The Court of Justice of the EU has found2 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.
6.1 Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to her. If she succeeds in doing so, then, and only then, is it for the Respondent to prove the contrary. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of "sufficient significance" before a prima facie case is established and the burden of proof shifts to the Respondent. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. In a recent Determination the Labour Court 3, whilst examining the circumstances in which the probative burden of proof operates held as follows -
"Section 85A of the Acts provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.
In this case it was submitted that the Complainant was treated badly by the Respondent and the Court was invited to infer that he was so treated because of his race. Such an inference could only be drawn if there was evidence of some weight from which it could be concluded that persons of a different race or nationality were or would be treated more favourably. All that has been proffered in support of that contention is a mere assertion unsupported by any evidence."
It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the Respondent. In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties.
6.2 The complainant has produced no basis for the claim of victimisation.
6.3 The complainant's employment was terminated on the expiry of a fixed-term contract. The decision not to renew her contract beyond 31 July 2009 was due to redundancy. In this she was treated no less favourably than any other worker employed on a fixed-term contract irrespective of pregnancy or maternity. The termination of her employment was not motivated by her pregnancy or maternity and therefore does not constitute discrimination.
6.4 The complainant states that she was not re-employed by an employment agency supplying the respondent and that the decision not to recruit her was motivated by her pregnancy and/or maternity. If she was not recruited for these reasons, this would amount to direct discrimination on the gender ground. However, the respondent denies that it was the employer of the agency workers assigned to it. The complainant has produced no evidence that the respondent was liable for the pay of the agency workers and thereby deemed to be their employer. I am satisfied that the respondent while the provider of agency work within the meaning of the Acts is not the employer of the agency workers and therefore is not the appropriate respondent to a claim by a prospective agency worker of discrimination in recruitment by the employment agency.
Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Acts. I find that the complainant:
(iv) was not discriminated against by the respondent on grounds of gender ground within the meaning of sections 6 (2) (A) the Acts and contrary to section 8 of the Acts when she was dismissed while on maternity leave;
(v) she was not discriminated against by the respondent on account of her gender in access to employment contrary to section 6 (2) (A) and section 8 of the Acts; and
(vi) she was not victimised within the meaning of section 74 (2) of the Acts.
23 July 2013
1 Art. 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.
2 Melgar v Ayuntamiento de Los Barrios (C-438/99)  E.C.R.-I 6915 para. 47
3 Arturs Valpeters v Melbury Developments  21 E.L.R. 64.