EDA1314

Relations between the two were very cordial until the evening of the 25^thAugust 2008 when the worker became aware that she had become pregnant and that she was at risk of losing the baby. Thereafter the parties have diametrically opposed views on the manner in which the relationship developed. The Worker maintains that her employer’s behaviour towards her became hostile, that she reduced her hours by 50% and that by the end of the year had made her redundant. She maintains that these adverse actions arose directly out of the pregnancy.

The Employer maintains that she showed the Worker nothing but kindness over the course of her employment and while pregnant but that the combination of a change to her daughters school and a downturn in her business circumstances obviated the need for the same level of child minding arrangements on the one hand and put them out of the financial reach of the business on the other leading initially to a reduction in her hours and ultimately to her redundancy.

Complainant’s Case

The Complainant maintains that she fell ill whilst at work on 25 August 2008. She maintains that she felt a pain in her stomach area whilst at work, that she collapsed and for a short while had lost consciousness. She says that she went to the doctor that evening and discovered that she was pregnant and that she was at risk of losing the baby. She sent her employer a text message explaining her circumstances and advising her that she was medically certified unfit for work and that she would not be available for work the following day. She says that she received a response from the Employer in SMS form in the following terms

“Hi Wioleta, this is not good for me, You have to come in the morning but I am working at 8 and will be back at 11:30. Talk to you then”

Despite the medical certification she says that she felt that she had no choice but to report for work at 8:30 the following morning. She says that she took care of the children until the Employer returned home around 12:30. She says that the Employers attitude was hostile and aggressive. She queried how the Worker was going to continue working for her and fulfil her duties in light of her pregnancy. She says that the Employer stressed that the work was not easy and stated that it would be better for both of them if she found a new job.

She says that she submitted a further medical certificate on the 7^thSeptember that covered her until the 30^thSeptember. She says that she received a letter from the Employer on the 9^thSeptember 2008 setting out her sick and maternity leave entitlements. The letter also noted that there were considerable changes to the children’s school arrangements. Finally the letter also stated that the Employer would not be available to meet her on the 1^stOctober, and that she should defer her return to work date until Monday 6^thOctober when the Employer would be available to meet her.

On her return to work on October 6th 2008 the Employer told her that her daughter had changed schools and that both she and her son would now be in school for a longer time each day and that a large number of their out of school activities would now be accommodated within school hours. The Employer informed her that she was accordingly reducing her hours by 50% with immediate effect.

The Complainant sought advice on the matter from the Social & Legal Advice Centre inthe Polish Chaplaincy in relation to the reduction in her hours of work. They wrote to the employer on her behalf on the 26^thNovember querying the justification for the changestoher terms and conditions of employment.

An exchange of correspondence between the Centre and Messrs. Lavelle Coleman Solicitors, acting for the Employer, followed. On the 11^thDecember Lavelle Coleman wrote to the Centre indicating that there had been a downturn in the Employer’s business and that the Worker was now at risk of redundancy.

On the 13^thDecember the Worker was again certified unfit for work. She so informed the Employer by SMS message. The Employer responded by SMS saying that she needed to meet her as soon as possible.Ameeting took place at the Worker’s place of work on the 17^thDecember at which the Employer told her she was making her redundant. She had all of the relevant forms ready for signature together with a cheque for the amount of her statutory redundancy entitlement.

The Worker took the forms away for advise and though there was a further meeting between the parties on the 20^thDecember matters were not completed until early January 2009.

The Worker and Employer had no further direct contact after that date.

The Respondent’s Case

The Employer said that she employed the Worker to care for her children and to undertake some light housework whilst she and her husband attended to their business affairs. She practised as a sole trader and it was in this context that she employed the Worker on a contract of employment prepared for her by her accountant. She said that she had an excellent relationship with the Worker at all times up to and including the date on which her employment ended by reason of redundancy.

She said that she received an sms message from the Worker at about 20:30 hours on August 25^th2008. She said that worker indicated in the message that she was not well and that she had told that she was pregnant and that she was unfit for work. She said that she responded to that message in the terms set out above. She said that she had an appointment early on the 26^thAugust and could not meet her at 8:00 a.m. However she told the Worker to come in the following morning and that they could have a discussion when she got home around mid- day. She said that the sms message was not intended to cause distress as she had an excellent relationship with the Worker.

She said shemetthe Worker the following day at around noon. She said that their conversation was cordial and pleasant. She said she knew that the Worker was close to her mother and she asked her if she intended having the baby here or in Poland near her mother. She said that she would investigate and establish all of the relevant information regarding maternity entitlements in Ireland and would pass them on to her. She said she did this and as the Worker was out ill she sent the information to her by way of letter dated 9 September 2008.

She said that at the Worker was scheduled to return to work on 1 October 2008 but that she was not available to meet her on her return to work. Accordingly she asked her to defer her return to work until 6^thOctober when she would be available to meet her and brief her on developments.

She said she mat the Worker on the 6^thon her return to work. She said she explained that her two children would now be at school from 8:30 am until late afternoon. Accordingly she had no need of child minding or services in the morning time. She said that she outlined the new school finishing times and changed the Worker’s hours to accord with these. She said that this resulted in a reduced level of demand for the Worker’s services and hence she reduced her hours by 50% to reflect the changed level of demand. She said the Worker accepted these revised arrangements.

She said that she was surprised to receive a letter from the Social & Legal Advice Centre. She said that she felt she needed to take legal advice on the matter. Accordingly she arranged for her solicitors to respond to the Centre in the terms set out in their letter of 11December.She said that at this time her business was experiencing severe difficulties. She was spending less time at work and was earning less fee income and consequently had less need for and less capacity to pay for the Worker’s services. She said that the letter of the 11^thDecember raised this scenario with the Worker and indicated that a redundancy situation could arise.

She said that over the following period weeks the children’s school routine settled down and the business continued to experience trading difficulties. She said that she was eventually left with no choice but to make the Worker redundant. She said she did so on the 17^thDecember and prepared all of the relevant documentation to ensure that the Worker would be paid her redundancy entitlements before Christmas. She said she called the Worker to a meeting on the 17th De^cember for this purpose. However the Worker decided to seek advice regarding the forms she was being asked to sign and this delayed the matter until early January.

She said that she at all times treated the Worker with dignity and respect. She said that she had great regard for her personally and professionally and that she was very good at her job. She said that it was a confluence of circumstances that gave rise to the reduction in hours and the ultimate redundancy. She said that pregnancy was not an factor in these decisions. She said the change in the school routine and the reduction in the fortunes of her professional practice fully explain the developments that occurred.

Findings of the Court

The issues arising for decision in this case are, firstly, whether the Complainant was dismissed solely on grounds of redundancy, as contended for by the Respondent, or whether the dismissal was tainted by discrimination on gender grounds by reason of the Complainant’s pregnancy; secondly, whether the Complainant was discriminated against on gender grounds by reason of pregnancy in relation to her conditions of employment arising from the reduction in her pay in line with the reduction in hours introduced by the Employer in October 2008.

While there are significant questions of law arising in the case these are essentially questions of fact and degree to be determined on the evidence. The Court has carefully evaluated all of the testimony proffered in the case and had taken account of the demeanour of the witnesses in giving their evidence. The Court has also taken account of the many documents put in evidence.

The Law applicable

Protection of Women during Pregnancy

This Court has set out the law in this regard inTrailer Care Holdings Ltd.- and-Deborah HealyEDA128 in the terms that are worth quoting in full: -

“In a line of authorities starting with the decision in C-177/88,Dekker v Stichting Vormingcentrum voor Junge Volwassenen[1990] ECR 1-3841 the Court of Justice of the European Union (formally the ECJ) has made it clear that since pregnancy is a uniquely female condition any adverse treatment of a woman on grounds of pregnancy is direct discrimination on ground of her sex. Thus, the law of the European Union recognises the reality that to treat a woman less favourably because she is pregnant is to discriminate against her because she is a woman. That can never be justified. Issues such as disruption caused to an employer’s business or costs associated with accommodating a pregnant woman in employment are, as a matter of Union law, wholly irrelevant.

Since the decision inDekkerthe protection afforded to pregnant women in employment has been strengthened considerably in the case law of the CJEU and in the legislative provisions of the European Union. Equality on grounds of gender is now expressly guaranteed by Article 23 of the Charter of Fundamental Rights of the European Union. Article 33.2 of that Charter also incorporates the prohibition of dismissal on grounds of pregnancy established in jurisprudence of the CJEU. It provides: -

• To reconcile family and professional life, everyone shall have the right to protection from dismissal for a reason connected with maternity and the right to paid maternity leave and to parental leave following the birth or adoption of a child.

• In order to guarantee workers, within the meaning of Article 2, the exercise of their health and safety protection rights as recognised under this Article, it shall be provided that
  :
  1.Member States shall take the necessary measures to prohibit the dismissal of workers, within the meaning of Article 2, during the period from the beginning of their pregnancy to the end of the maternity leave referred to in Article 8 (1), save in exceptional cases not connected with their condition which are permitted under national legislation and/or practice and, where applicable, provided that the competent authority has given its consent;
  
  2.If a worker, within the meaning of Article 2, is dismissed during the period referred to in point 1, the employer must cite duly substantiated grounds for her dismissal in writing;
  
  3.Member States shall take the necessary measures to protect workers, within the meaning of Article 2, from consequences of dismissal which is unlawful by virtue of point 1.

• “Whereas the risk of dismissal for reasons associated with their condition may have harmful effects on the physical and mental state of pregnant workers, workers who have recently given birth or who are breastfeeding; provision should be made for such dismissal to be prohibited”

• “It is 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, have recently given birth or are breastfeeding, including the particularly serious risk that pregnant women may be prompted voluntarily to terminate their pregnancy, that, 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”

• “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 that the employer gives substantiated grounds for the dismissal in writing”

• BeforeDirective 92/85came into force, the Court had already held that, under the principle of non-discrimination and, particularly,Articles 2(1)and5(1) of Directive 76/207, protection against dismissal should be granted to women not only during maternity leave, but also throughout the period of the pregnancy. According to the Court, a dismissal occurring during those periods affects only women and therefore constitutes direct discrimination on the grounds of sex (see, to that effect, Case C-179/88 Handels- og Kontorfunktion�rernes Forbund [1990] ECR I-3979, paragraph 15; Case C-394/96 Brown [1998] ECR I-4185, paragraphs 24 to 27; and McKenna , paragraph 47).

• 45However, the objective is to arrive at real equality of opportunity and cannot therefore be attained in the absence of measures appropriate to restore such equality when it has not been observed. Those measures must guarantee real and effective judicial protection and have a real deterrent effect on the employer (Marshall , paragraph 24).
  
  46Such requirements necessarily entail that the particular circumstances of each breach of the principle of equal treatment should be taken into account. Where financial compensation is the measure adopted in order to achieve the objective previously indicated, it must be adequate, in that it must enable the loss and damage actually sustained as a result of the discriminatory dismissal to be made good in full in accordance with the applicable national rules ( Marshall , paragraphs 25 and 26).
  
  47It is necessary to recall that, in accordance withArticle 12 of Directive 92/85, Member States are also bound to take the necessary measures to enable all workers who consider themselves wronged by failure to comply with the obligationsarising from that directive, including those arising from its Article 10, to pursue their claims by judicial process.Article 10(3) of Directive 92/85specifically states that Member States shall take the necessary measures to protect pregnant workers or those who have recently given birth or are breastfeeding from the consequences of dismissal which is unlawful by virtue of paragraph 1 of that provision

• 49While recognising that the Member States are not bound, underArticle 6 of Directive 76/207orArticle 12 of Directive 92/85, to adopt a specific measure, nevertheless the fact remains, as is clear from paragraph 45 of the present judgment, that the measure chosen must be such as to ensure effective and efficient legal protection, must have a genuine dissuasive effect with regard to the employer and must be commensurate with the injury suffered.

• “With regard to the second part of the second question relating to the award of interest, suffice it to say that full compensation for the loss and damage sustained as a result of discriminatory dismissal cannot leave out of account factors, such as the effluxion of time, which may in fact reduce its value. The award of interest, in accordance with the applicable national rules, must therefore be regarded as an essential component of compensation for the purposes of restoring real equality of treatment.”

Burden of Proof

Section 85A of the Act now provides for the allocation of the probative burden as between the Complainant and the Respondent in cases coming with its ambit. This section provides, in effect, that the Complainant bears the initial burden of proving facts from which discrimination may be inferred. If those facts are established, and if they are regarded by the Court as of sufficient significance to raise an inference of discrimination, the onus passes to the Respondent to show that the principle of equal treatment was not infringed in relation to the Complainant.

Where the probative burden shifts the Respondent must show a complete dissonance between the discriminatory ground relied upon and the impugned conduct or omission. Thus, inWong v Igen Limited[2005] IRLR 258 (a decision of the Court of Appeal for England and Wales), Peter Gibson LJ pointed out that where the Respondent fails to show that the discriminatory ground was anything other than a trivial influence in the impugned decision the complaint will be made out.

As was pointed out by this Court in Determination EDA0821,Kieran McCarthy v Cork City Council, at the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the facts proved. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.

For reasons already mentioned in this Determination, the special protection afforded to pregnant woman against dismissal in European law requires that where a pregnant woman is dismissed the employer must bear the burden of proving that the dismissal was grounded on exceptional circumstances unrelated to pregnancy or maternity. Hence, in every case in which 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 Respondent.

The Court has considered the facts of this case in that context. The Court found the Worker in this case a credible and reliable witness. The Court finds that she experienced lower stomach pain whilst at work on the 25^thAugust 2008 and on the balance of probabilities lost consciousness for a short period of time. She did not report the loss of consciousness to her employer. She went to her doctor that evening and was told she was pregnant and that the she was at risk of losing the baby. She notified the Employer by sms message of her circumstances and advised her that she was certified unfit for work for a period of time. The Employer responded by SMS message in the terms set out above. There is a conflict of evidence as to the meaning of that response. The Worker understood it to mean she was to attend for work the following morning. The Employer states that the Worker said she was coming to work in any case and the message was not an instruction to report for work while certified unfit. The Court has considered the evidence of both parties on this point. The Court finds the Worker’s evidence more compelling than that of the Employer. The Employer told the Court that she received the SMS message around 8:30 P.M.; that she was scheduled to meet a new client the following morning and that she wrote the SMS message in that context. However she took no steps to find a substitute child minder for the following morning. She relied on the Worker reporting for work to take up her duties until she returned home around noon. Accordingly the Court finds her explanation of the SMS message unconvincing and inconsistent with the plain meaning of the words and with her own evidence and with her subsequent behaviour the following morning.

There is a conflict of evidence between the parties regarding the nature of the conversation that took place when the two met on 26^thAugust. The Worker says the Employer was hostile and aggressive and told her it would be better for them both if she were to find another job. The Employer says that she was friendly and engaged in conversation regarding the Worker’s plans and whether she intended having the baby in Ireland or near her mother in Poland. She says the Worker had often told her she was close to her mother. Consequently she was enquiring if the Worker intended returning home to be near her for help and support through the pregnancy.

The Court prefers the Worker’s evidence on this point. The Employer had effectively instructed her to attend at work that morning despite the medical certificate declaring her unfit for work. In her evidence the Employer stated that she had a meeting with an important new client and that she SMS message the night before had left her with a real problem for the following morning. The tone of the SMS message displays frustration with the circumstances that had arisen and the pressure it placed on the Employer. The Worker attended for work on the 26^thbut effectively simply allowed the children to watch television as she was unfit to perform other duties.Giventhe demeanour of both witnesses and considering the circumstances in which the conversation between took place that day the Court finds that the Employer’s version of events is not consistent with the evidence and the Court was not convinced by her version of events. The Court, on the other hand, found the Worker’s version of events consistent with the evidence and her demeanour in presenting it impressed the Court. Accordingly the Court finds that the conversation that took place that morning was hostile and aggressive and that the Employer, on the balance of probabilities, sought to put pressure on the Worker to vacate her post at least for the duration of what would probably be a difficult pregnancy giving rise to periods of illness and inconsistent and unpredictable attendance at work.

The Worker then was declared unfit for work for a further period on the 7^thSeptember and she was due to return to work on the 1^stOctober. It is common case that the Employer told her to defer returning to work until the 6^thOctober. On that day the Employer told the worker that she was reducing her pay and hours of work by roughly 50% arising out of her daughters’ and sons’ change of school and school attendance patterns. She maintains that the Complainant’s pregnancy was not a factor in this decision.

The Court accepts the Employer’s evidence that the school related changesjustifieda change to the hours of work but not to the extent imposed in this case. It is common case that the Worker reported for work at around 8:30ameach day and took the Employer’s daughter to school for 9:15am. She then returned home and carried out house work until she collected the daughter at 1:30pmand returned home with her before picking the Employer’s son up later that afternoon.

It is clear that in the new circumstances the children were now being left to school by alternative means and the need for the Worker to undertake these duties was no longer present. However the house work that she performed between 9:30amand 1:15pmwas not affected by that change in school pattern. No provision was made in the new arrangements for these three and a half hours house work per day. In her evidence the Employer said she would not have a pregnant woman perform housework or undertake any heavy work. However the Employer at no stage gave any evidence of carrying out a risk assessment to establish the precise nature of the work the Worker could undertake. The Worker said she was well capable of performing the housework she normally carried out during those hours.

Accordingly the Court, on the basis of the Employer’s own evidence, finds that the worker’s hours were reducedsignificantlypartially because of her pregnancy,without any risk assessment and consequently without justification.

The Worker attended an advice centre in relation to the reduction to her hours of work. They wrote to the employer on the 26^thNovember 2008 querying the rationale for that decision. The Employer responded through her solicitors on the 11^thDecember setting out the rationale for the decision and indicating that the Employer’s business circumstances were deteriorating and that redundancy may have to be considered in respect of the Worker in this case. The Advice Centre responded on the 17^thDecember and the Solicitors replied on the 19^thDecember. On the 17^thDecember the Employer met the worker who had been on a further period of sick leave and advised her that she was making her redundant. She said that this was necessary as the business was experiencing severe financial difficulties and could not afford to maintain her in employment.

The Worker gave evidence that her relationship with her employer was extremely difficult at this time. She said that the Employer reacted in a very aggressive manner when she received the first letter from the Advice Centre. She said that the Employer had made her working environment very difficult and it was clear that she did not want her working for her any longer. She said that she was in difficult financial circumstances and had no choice but toaccept the reduction in pay and hours and seek to establish her rights and entitlements. She said that all of her conversations with the Employer were now hostile and aggressive.

The Employersubmitted a set of financial figures for the business for the years 2007, 2008, 2009 and 2010. She said that the figures show that there was a reduction in the level of business from 2007 onwards butin the Court’s viewit was not of the proportions claimed by the Employer. The figures submitted indicated that the Employer was engaged in a considerable level of work activity in each of those years.

The Employer stated that she was at all times cordial and maintained a good working relationship with the Worker over the course of her employment. She said that she had met the Worker on the 6 October to explain that the children’s school circumstances had changed and she no longer need her to bring her daughter to school. She said that she explained that the after school activities were now taking place in school and that there was a reduced requirement for her services in that regard. She said that she reduced the hours of work proportionately. She said the Worker accepted this. She said that she was therefore surprised to receive a letter from the Advice Centre. She said she felt she needed to respond to that in writing and asked her Solicitor to do so on her behalf. She said that she did not raise the letter with the Worker as her Solicitor was handling it. She said that her business was now going through severe trading difficulties and she so advised her solicitor. They set that out in the letter of the 11^thDecember. She said she did not advise the Worker directly of this possibility. She said that the business continued to decline and she decided that she should terminate the Worker’s employment before Christmas to ensure that she was paid off and in possession of her redundancy payments in time for the holidays.

She said that she asked her accountant to compute the statutory amount due and to prepare the associated legal papers for signing. She said she met the worker on the 17^thDecember and told her that she was making her redundant and that all of the necessary documents were ready for signing. She said that the Worker took the papers away and returned on the 20^thDecember. However another form needed signing and the Worker took this away also for advice. Accordingly the transaction was not completed until early January 2009.

The Employer said that the accounts for the relevant years demonstrate a decline in activity on the one hand and a total collapse of profitability on the other. She said she could no longer afford to keep the Worker in employment. She said that was the sole reason for terminating her employment.

The Court finds it difficult to accept that the Employer would not have raised the letter from the Advice Centre with a worker with whom she had a good working relationship. The Worker had had her hours reduced at a meeting that she says was very tense. She says she felt she had no option but to accept the changes and to seek advice. She said that she had the letter written on her behalf in an effort to assert her rights. She said that the Employer raised the letter with her in a hostile fashion and the relationship deteriorated further. The Court finds this account more credible than that presented by the Employer.

Furthermore the Court has examined the “accounts” of the Employer’s business. The Court notes that they are not audited accounts. To that extent they are not particularly of assistance in establishing the Employer’s case. The Court notes however that they indicate a high level of activity in the business in 2009 the relevant year for this purpose. The Employer maintains that she was at home more and was now available to undertake the work of the Employee. However the reduction in turnover for that year compared to 2008 is relatively modest. It does not fit well with the employer’s position that she had very little work.

Moreover the Court notes that the accounts shownomajor loss of business between the 11^thDecember 2008 and the 20^thDecember such as would justify the decision to make the Complainant redundant.In additionthe Court finds it difficult to understand how the Employer, who claims the working and personal relationships at this time were excellent, did not discuss the prospect of redundancy directly with the Worker in the lead up to making that decision.

A more likely explanation is that the Worker became pregnant, was missing work because of the pregnancy and this presented a difficulty for the Employer. The Employer initially reduced her hours significantly. When the Worker took advice and secured representation, the Employer decided to terminate her employment. She relied on a decline in her business which in the view of the Court was unsubstantiated as grounds for making her redundant.

Accordingly the Court finds that the reason for reducing the Workers hours was influenced by her pregnancy and the reason for dismissing her was totally related to her pregnancy.

Determination

The Court determines that

(1) the Respondent discriminated against the Complainant on the grounds of gender, in terms of Section 6(2) of the Employment Equality Acts 1998 - 2008 and contrary to Section 8 of those Acts in respect of her conditions of employment.

(2) the Respondent dismissed the Complainant in circumstances amounting to discrimination on the grounds of gender in terms of Section 6(2) of the Employment Equality Acts 1998 - 2008 and contrary to Section 8 of those Acts.

The Complaints are upheld. The Equality Officer’s Decision is set aside.

The Court orders the Respondent to pay the Complainant compensation in the sum of €20,000 for the infringements of her rights under the Act.

The Court so determines.

Signed on behalf of the Labour Court



Brendan Hayes
23rd July, 2013______________________
JFDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.