INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 83, EMPLOYMENT EQUALITY ACTS, 1998 TO 2011
NIALL GILLICK T/A TWIST FOODS
(REPRESENTED BY MARY COWHEY & COMPANY SOLICITORS)
- AND -
(REPRESENTED BY HUGH MC CABE SOLICITORS)
Chairman: Ms Jenkinson
Employer Member: Ms Cryan
Worker Member: Ms Tanham
1. Appeal under Section 83 of the Employment Equality Acts, 1998 to 2011.
2. The Employer appealed the decision of the Equality Officer to the Labour Court on the 29th January, 2013. A Labour Court hearing took place on the 25th June, 2013 and the 7th October, 2013. The following is the Court's Determination:
This is an appeal by Niall Gillick t/a Twist Foods against the Decision of an Equality Officer in a complaint made by Ms Andrelika Rozploch under the Employment Equality Acts 1998-2011 (hereafter the Acts). The parties are referred to in this Determination as they were at first instance. Hence, Ms Rozploch is referred to as “the Complainant” and Niall Gillick t/a/ Twist Foods is referred to as “the Respondent”.
The Complainant alleges that she was subjected to discriminatory dismissal on grounds of her pregnancy. The complaint was investigated by an Equality Officer of the Equality Tribunal. The Equality Officer found in favour of the Complainant and awarded her compensation in the amount of €15,000 for the discriminatory dismissal which she deemed to have occurred.
The Respondent appealed against the finding and held that he did not terminate the Complainant’s employment.
The Complainant was employed by the Respondent as a kitchen porter from 15th May 2007.Initially she worked on a casual basis, mostly working Sundays only. After she returned from her first pregnancy in August 2008 she began to work between 30 and 34 hours per week.
In October 2009, the Complainant informed the Respondent that she was pregnant. Approximately one weeklater the Complainant was diagnosed as being at high risk and was medically advised to cease working. The Complainant so informed the Respondent. The Complainant obtained medial certificates but the Respondent told her that there was no need to do so as he accepted that she was medically unfit to work. Early in 2010 the Respondent’s accountant furnished the Complainant with her P45 which stated that her employment terminated on 1st November 2009.The Complainant submitted a claim under the Act alleging that this action constituted a dismissal which was discriminatory on gender grounds.
Position of the parties
The Complainant’s Case
Mr. Owen Keany, B. L. instructed by Hugh McCabe, Solicitors, on behalf of the Complainant, submitted that the Complainant’s dismissal while pregnant constituted aprima faciacase of discrimination as pregnancy is a specially protected period and accordingly the burden of proof shifts to the Respondent to demonstrate that the dismissal was unconnected with her pregnancy.
Mr. Keany stated that on or about mid November 2009, the Complainant experienced some difficulties in obtaining social welfare benefits due to her contribution record which indicated that she lacked the requisite credits to qualify for Family Income Supplement benefit. The Complainant was informed that this application necessitated a letter from her employer confirming the length of her employment as records indicated that she did not have enough PRSI contributions to qualify for the assistance. The Complainant made numerous requests of her employer seeking the letter. Her partner approached the Respondent to discuss the matter and to seek such a letter, and on 17thNovember 2009 he was referred to the Respondent’s Accountant. In early January 2010 the Accountant furnished the Complainant’s partner with an envelope containing a copy of the Complainant’s P45. The P45 listed the Complainant's termination date as 1st November 2009. Upon receiving her P45 the Complainant and her partner attempted to contact the Respondent but to no avail.
The Complainant stated that theenvelope did not contain the letter verifying her length of service which she had consistently requested. Instead it contained her P45.Mr Keany stated that the Complainantwas distraught at this as she understood that the furnishing of her P45 indicated that her employment with the Respondent was terminated. The P45 listed the Complainant's termination date as the 1st November 2009.Upon receiving her P45, theComplainantmade a number of attempts to contact theRespondentto discuss the situation. On each such occasion, she was informed that the Respondent was away on holidays and could not talk to her.The Complainant referred a complaint under the Act to the Equality Tribunal on 28thApril 2010.
Mr. Keany submitted that the Respondent intended to terminate the Complainant's employment following her departure from the workplace on the grounds of illness. This is borne out in the actions of the Respondent who took the unilateral decision to issue the Complainant with her P45 and thereafter refused to communicate with the Complainant despite her several attempts to seek clarification from the Respondent.
In support of the Complainant’s claim Mr. Keany cited a number of cases including the case ofDekker v Stichting Vormingscrentrum voor Jong Volwassen ECJ 177/88[1990 E.C.R. 1-3941]. The Court of Justice in this case held that unfavourable treatment because of pregnancy is by definition direct discrimination on the grounds of sex.
Mr Keany also citedBrowne v Rentokil [1998 ECRI/4185]in which the European Court of Justice held that the entire period of pregnancy and maternity leave is a special protected period during which both the Equal Treatment Directive 76/207 and the Pregnancy Directive 92/85 prohibit pregnancy related dismissal on grounds of equality. These decisions and Directive 92 /85, make it clear that women who are pregnant are to be afforded special protection in employment and cannot be dismissed save in exceptional circumstances unrelated to their pregnancy.
Summary of the Respondent’s Position
Ms Sarah-Jane Hillery B.L. instructed by Mary Cowhey & Co. Solicitors on behalf of the Respondent denied that the Complainant has been discriminated against and held that there was no dismissal in any event.
The Respondent owns and operates a small cafe and catering business. The Complainant commenced working with the Respondent on an occasional basis in May 2007. She took maternity leave on her first child in December 2007 and when she informed the Respondent that she would cease working the Respondent informed her that her job would be available to her when she was ready to return.
When she returned to work in August 2008 she took up occasional work again, she began working on a more regular basis from the start of July 2009. In October 2009, the Complainant informed the Respondent that she was pregnant again but confirmed that she was happy to continue working at that time. The Complainant was put on lighter duties in order to facilitate her ability to continue working. Approximately one week later the Complainant presented a doctor's letter which stated that she was unable to work due to complications related to her pregnancy. The Complainant said that she would bring further medical certificates but the Respondent informed her that this was not necessary as he accepted the doctor's certificate and wished her well with her pregnancy. The Respondent informed the Complainant as he had done on the previous occasion that her job would be there for her when she wished to return.
Ms Hillery said that it was at all times understood by the Respondent and his staff that the Complainant would return to work after her pregnancy as she had done after her previous pregnancy and at all times there was a job available to her to return to. However, Ms Hillery stated that some weeks after ceasing work, the Complainant requested her P45. She initially asked Ms Magda Bytmilnska, the Manager, for proof of her employment with the Respondent. Ms Bytmilnska gave the Complainant some pay slips. Ms Hillery said that then the Complainant requested her P45 from the Respondent and was advised to contact the Company’s Accountant. The P45 was provided by the Respondent's Accountant. Ms Hillery said that the Respondent understood that this document was necessary for the purpose of a claiming social welfare benefit and at no stage was it made aware to him that the Complainant believed she had been dismissed until he received the within proceedings.
Ms Hillerysubmitted that the primary issue before the Court was whether a dismissal took place at all. She said that there was no intention to terminate the Complainant's employment, therefore there was no dismissal. The Respondent was satisfied with the Complainant's work and had no reason or motive to dismiss her. Ms Hillery said that no dismissal took place nor did the Respondent ever believe that the Complainant was resigning. She submitted that on the basis of her previous pregnancy the Respondent reasonably assumed, and was entitled to assume, that the Complainant was ceasing to work for the duration of her pregnancy and would return to work afterwards. It was the Respondent’s understanding that her request for her P45 was associated with her claim for social welfare purposes only.
In support of the Respondent’s position Ms Hillery citedBlackrock Inns t/a Rochestown Hotel v MatulevicieneDetermination EDA124 where the Court referred to the meaning of "dismissal":-
- A dismissal (other than by construction) arises where an employer forms an intention to unilaterally terminate the employee’s employment and communicates that intention to the employee in unambiguous terms. The evidence adduced on behalf of the Respondent was to the effect that an intention to terminate the Complainant’s employment had never been formed by a person having authority to make such a decision and that there was no reason as to why the Complainant should be dismissed. It is noteworthy that no motive or reason for wishing to dismiss the Complainant was put to the Respondent’s witnesses in the course of cross-examination.
Ms Hillery submitted that as in theBlackrock Innscase there was no intention to terminate the Complainant’s employment and therefore there was no dismissal.
Evidence was given by the Complainant Ms Andrelika Rozploc and by Mr Tomasz Zareba the Complainant’s partner. On behalf of the Respondent evidence was given by Mr Niall Gillick the owner of the café/restaurant and by Mr John Flynn who is the Respondent’s Accountant and by Ms Magdalena Kaszynska Manager of the café/restaurant. Their evidence can be summarised as follows:
Evidence of Ms Andrelika Rozploc
In evidence the Complainant told the Court that in October 2009 she informed her employer, Mr. Gillick, that she had been medically advised to discontinue working due to the high risk to her pregnancy. He told herthere was no need to supply medical certs they were only required for social welfare purposes and that she could come back to work on the completion of her pregnancy. She said that on her first pregnancy there was no problem with her returning to work and that the staff had kept in contact with her during her maternity leave.
In her evidence the Complainant told the Court that she had commenced employment with the Respondent on 15thMay 2007 as a Kitchen Porter, she worked every Sunday and provided annual leave cover. She went on maternity leave from 1stDecember 2007 until August 2008 when she returned to work for the Respondent. On her return in August 2008 she commenced working extra days per week. By July 2009 she was working 34 hours per week at which point PAYE/PRSI deductions commenced.
The witness told the Court that at the beginning of November 2009 she was in contact with social welfare office who informed her that she had no entitlement to benefits as she did not have enough contributions, therefore she required verification from her employer of the length of her employment with the Respondent as records indicated that she did not have enough PRSI contributions to qualify for assistance. She told the Court that along with herpartner she went to the café for the purpose ofseeking such clarification that she had been employed since15th May 2007. She met with Mr. Gillick who informed her to contact his Accountant. Mr. Gillick gave her his Accountant’s number.
On 24thNovember 2009 the Complainant and her partner went to see the Accountant who gave her documents with details of her PRSI contributions. She brought this information to the social welfare office who informed her that she did not have enough contributions to qualify for benefit and informed her to contact her employer for a letter stating that she was not in receipt of any payment while she was on sick leave. The Complainant and her partner then went back to Mr. Gillick seeking this information. He again referred them to the Accountant. The Accountant said that he would need to speak to Mr. Gillick and told them to come back the following week. One week later the Accountant said that he had still not spoken to Mr. Gillick and asked them to come back again at another time. The witness said that when her partner returned the Accountant informed him that due to severe flooding in the area his computers were malfunctioning and therefore he was not in a position to supply the information required. It was not until sometime after Christmas, around the beginning of January that her partner telephoned the Accountant who informed him that the letter was ready. The Complainant’s partner picked up a sealed envelope in her name from the Accountant’s office.
The Complainant stated that when she opened theenvelopeshe was shocked to see that itdid not contain the letter verifying her length of service which she had consistently requested. Instead it contained her P45,she said that she knew the significance of this.
She told the Court that she tried to contact Mr. Gillick on a number of occasions but on each such occasion she was informed that the Respondent was away on holidays and could not talk to her.He did not return her calls. She said that she telephoned MsBytmilnskawho informed her that Mr. Gillick was away on annual leave for a number of months. She told the Court that she did not go back to the Accountant as she believed that he was acting on Mr. Gillick’s instructions therefore there was no point. She said that she was very upset and formed the view that that by being furnished with a P45 she was effectively dismissed by her employer.
When she brought the P45 to the social welfare office, they told her she was unemployed.
Evidence of Mr Tomasz Zareba
Mr. Tomasz Zareba, the Complainant’s partner, gave evidence. He stated that he had accompanied the Complainant to the Accountant’s office on the first two occasions and also to the social welfare office. On the last occasion in January 2010 when he went to the Accountant he was on his own, as the Complainant was in late stage of pregnancy and was not up to the task. He told the Court that he had telephoned the Accountant beforehand to ensure the requested letter was ready for collection and when that was confirmed he called to the office and picked up the sealed envelope. He said that he never asked for the Complainant’s P45. He said that the Complainant was upset when she saw that the envelope contained her P45 that she had never looked for a P45, they had only sought a letter setting out that the Complainant was not in receipt of any monies while she was out on sick leave.
In cross-examination the witness told the Court that he asked the Accountant for a P60 and not a P45. He said that the P60 information was as required by the Department of Social Protection (herein after referred to as “the Department”) in their letters to the Complainant dated 9thNovember 2009, 14thJanuary 2010 and again on 3rdFebruary 2010.
Evidence of Mr Gillick
Mr Gillick told the Court that he owns and runs a small café which turns into a restaurant/tapas bar in the evening time, employing between eight and ten staff. He said that he extended the restaurant in 2008 and by July 2009 it had doubled in size and he needed more staff. The Complainant then commenced working on a regular basis. He said that in October 2009 the Complainant informed him that she was pregnant and diagnosed as being at high risk, he told her to take whatever time she needed and that there was a job there for her on her return.
Mr Gillick said that the Complainant came into the café sometime later looking to have forms completed for social welfare purposes. He said that she asked him for a P45 and that he told her he would have to get it from his Accountant. He told her he would travel to Clane to his Accountant’s office that afternoon she said that she could go there herself as she lived nearby. He said that he questioned her if she was sure that this was the document she needed and she confirmed that it was. On that basis Mr Gillick said that he telephoned his Accountant and instructed him to give the Complainant whatever she required.
Mr Gillick said that occasionally students who worked in the café on a part-time basis go abroad for the summer months and they would ask for a copy of their P45. On such occasion he instructed his Accountant to supply them. He said that the students came back to work for him at the end of the summer, so he did not think it unusual to supply a P45 for someone who was returning to work after a period.
Mr Gillick said that he was away for a number of months from 28thDecember 2009 until 7thMarch 2010 and Ms Magdalena Kaszynska was in charge in his absence. Ms Kaszynska was in regular contact by e-mail with him during this time; however, no problems concerning the Complainant were raised with him. He said that the first time he became aware of the equality claim against him was after he returned from leave and he received notification of the case from the Complainant’s Solicitor.
Mr Gillick stated that he left it up to the Accountant to fill in the form. It was the Accountant who wrote the termination date on the P45 – 1stNovember 2009.
Mr Gillick told the Court that he still considered the Complainant an employee and that she had a job to return to following her maternity leave.
In cross-examination when asked why he did not clarify the situation as soon as he became aware of the equality claim he said that he made contact with his Solicitor for advice. He said that had the Complainant come straight to him he would have clarified the situation and explained to her that her job was still there on her return from maternity leave.
Evidence of Mr John Flynn
Mr John Flynn gave evidence; he has been Mr Gillick’s Accountant since 2000. He told the Court that he handles Mr Gillick’s payroll, he collects invoices, and deals with all his bookkeeping requirements. He told the Court that his first contact with the Complainant occurred when on 17thNovember 2009 she came into his office accompanied by her partner and requested him to complete a Department form which she brought with her. A signature on behalf of the employer was required on this form to indicate that she was not in receipt of any earnings while she was on sick leave. Mr Flynn said he complied with this request. He said that the Complainant also sought a copy of her P45. He told the Court that he could not give her a P45 as she was not leaving her employment, so he telephoned Mr Gillick to let him know of this. He said that Mr Gillick told him to give the Complainant whatever she requested.
When questioned if he was sure it was a P45 that the Complainant requested Mr Flynn said that yes and that it was not a P60 as he would not have been able to give a P60 as it was not yet the end of the year. He could not give her the P45 there and then and it was sometime before he was able to do so, due to flooding in the area. He said that he had a print out from Revenue Commissioners indicating it was filed on 18thDecember 2009. He left it in an envelope for collection by the Complainant. The Complainant’s partner collected it on either 6thor 7thJanuary 2010. Mr Flynn said that he had no contact with either the Complainant or her partner about the matter after that date, and was unaware of any problems until Mr Gillick showed him the Solicitors’ letter regarding the equality claim.
Mr Flynn stated that in completing the P45 form he looked up the payroll details and saw that the last week the Complainant worked was week ending 1stNovember 2009 so he included this date on the P45 as the last day of her employment.
In cross-examination Mr Flynn stated that he was not aware that the Complainant had a medical certificate covering the period from 26thOctober 2009 until 4thJanuary 2010. He said that he had assumed that she needed the P45 for Social Welfare reasons, similar to the form he had been asked to complete for her. He said that the P45 was the only document her could give her to confirm her insurable weeks as he could not give a P60. He said that by issuing a P45 it did not mean that the Complainant could not come back to work for the employer, and recounted the experience of the part time students who went abroad for the summer and came back having sought a P45 before they left. He said that he did not have the authority to issue a P45 that was why he contacted Mr Gillick beforehand; however he accepted that he may not have understood the importance of issuing a P45.
Evidence of Ms Magdalena Kaszynska
Ms Magdalena Kaszynska, Manager of the Café/Restaurant told the Court that she was employed by the Respondent from 2005 until 2011, initially as a Waiter, then Supervisor and finally as a Manager. Ms Kaszynska told the Court that shortly after the Complainant ceased working due to the risks to her pregnancy, she returned to the café with a form which she wished to have completed in order to gain Social Welfare benefits. This form was to confirm the Complainant’s employment record with the Respondent. Ms Kaszynska told the Complainant that she needed to speak to Mr Gillick about that. She said that the Complainant came back to the café another time looking for Mr Gillick, at the time Mr Gillick was away on holidays, however, as the Complainant did not say that there was a problem she did not contact him about the matter. She said that had the matter been important she would have contacted Mr Gillick.
Ms Kaszynska told the Court that she expected to see the Complainant back at work following her pregnancy and that she did not say that she had been dismissed. She said that the first time she became aware that there was a difficulty was when Mr Gillick showed her the letter form the Complainant’s Solicitor.
In cross-examination Ms Kaszynska stated that the Complainant did not seek a P45 from her.
The law applicable
Protection of Women during Pregnancy
In a line of authorities starting with the decision in C-177/88,Dekker v Stichting Vormingcentrum voor Junge Volwassenen 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.
The Charter is now incorporated in the Treaty on the Functioning of the European Union (the Lisbon Treaty) and has the same legal standing as all preceding and current Treaties. It can thus be properly regarded as part of the primary legislation of the European Union.
The principle that discrimination on grounds of pregnancy constitutes direct discrimination on grounds of sex is now codified in Directive 2006/54/EC on the Principle of Equal Treatment of Men and Women (the Recast Directive). This Directive provides, at Article 2. 2 (c), that any less favourable treatment of a woman related to pregnancy or maternity leave within the meaning of Directive 92/85/EEC constitutes unlawful discrimination for the purpose of that Directive.
At recital 15 of the Directive provides: -
- 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 clear from the legislative provision of the European Union, that women are to be afforded special protection from adverse treatment, and in particular from dismissal on account of their condition, from the commencement of their pregnancy until the end of their maternity leave. The entitlement to that protection is to be regarded as a fundamental and inviolable right within the legal order of the Union which the Courts and Tribunals of the Union must vindicated within the limits of their jurisdiction.
Burden of Proof
Section 85A of the Acts provides for the allocation of the burden of proof in cases under the Acts. It provides that the Complainant must first establish facts from which discrimination may be inferred. If those facts are established on the balance of probabilities, and they are regarded by the Court as sufficiently significant to raise the inference contended for, the burden of proving that the principle of equal treatment has not been infringed in relation to the Complainant shifts to the Respondent. The Respondent must then discharge that probative burden on credible evidence and on the balance of probabilities.
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 is satisfied that a presumption of discrimination is within the range of inferences which can reasonably be drawn from the facts of this case. Therefore, the Complainant has made out aprima faciecase of discrimination and the burden of proof has been shifted to the Respondent in this case.
Findings of the Court
The essence of the Complainant’s case is that the Respondent dismissed her while she was pregnant and in so doing discriminated against her on gender grounds contrary to Section 8 of the Acts.
The Respondent denies that the Complainant was dismissed. It contends that there was no dismissal. Consequently the case turns on whether the Complainant’s employment was terminated by dismissal or not.
Having considered the evidence, the Court has been presented with conflicting views on whether the Complainant sought a P45 in the period following 9thNovember 2009; the Complainant was clear before the Court that she did not seek a P45, however she required details of her employment history in order to attain illness benefit from the Department arising out of her pregnancy-related medical condition.
The Complainant submitted to the Court a copy of a letter from the Department dated 9thNovember 2009 referring to her claim for illness benefit. This letter stated that based on her PRSI record for the years 2005 to 2009 she did not have 104 PRSI contributions paid and therefore was not entitled to benefit. This record showed that she had 27 PRSI contributions for the year 2007, 9 for 2008 and nil for 2009. However it stated that if she considered that she should have more PRSI contributions than those shown, then she should complete Part 1 of the form and send in her P60 for the relevant year(s) and“if necessary, ask your employer to complete Part 2 of this form”. In her evidence the Complainant stated that it was this Part 2 form, verifying her true length of service with her employer that she asked the Respondent to complete in the first instance. The Respondent’s Accountant filled in the form on 17thNovember 2009 stating that the Complainant had 16 PRSI contribution weeks in 2009, from July 2009 until 9thNovember 2009.
The Department wrote to her in a similar fashion on 14thJanuary 2010, again rejecting her claim and seeking a copy of her P60. A further letter from the Department dated 3rdFebruary 2010 while once again rejecting her claim indicated that she had 16 contributions for the year 2009 and reiterated the point about sending in her P60 if she thought she should have more contributions.
By letter dated 31stMarch 2010 the Complainant was informed that her application for Maternity Benefit was rejected as she was no longer in employment, as verified from the Department’s records which showed that she was last employed on 1stNovember 2009 and her baby was due on 19thMay 2010. The letter stated that if the dates quoted were incorrect and she was actually in employment within 16 weeks of the end of the week in which her baby was due, she should forward a letter from her employer confirming her entitlement to maternity leave including the leave start and end date, then her claim could be renewed.
The Court notes that there is no dispute that a P45 was supplied to the Complainant by the Respondent’s Accountant on 7thJanuary 2010 stating that her employment terminated on 1stNovember 2009. The Respondent disputed the contention that this action can be construed as a termination of employment in the circumstances and indeed submitted to the Court that the Complainant was still an employee. The Court is satisfied that supplying a P45 with a termination date had the effect of causing, in any event, an involuntary termination of employment by the Complainant. The fact that the Complainant considered it as such was brought to the Respondent’s attention via the Complainant’s Solicitor in April 2010, yet no effort was made to clarify the situation. No effort was made to ensure that the Complainant was made aware that there was no dismissal and that she was still an employee. This was during the period when the Complainant was pregnant, prior to the birth of her baby and there was still some considerable time before she would have been expected to return to work, yet no effort was made to clarify her employment status. The Complainant was left with the impression that she was correct in her assumption that she had been dismissed on 1stNovember 2010.
When account is taken of the findings in theBlackrock Innscase the Court accepts that the Respondent may not have formed an intention to dismiss the Complainant, however, by the lack of action to remedy the situation when it became know that the Complainant considered herself as dismissed such a finding must be made. In theBlackrock Innscase the position taken by the Respondent as soon as it became aware of the Complainant’s contention that she was dismissed was significant as“It unreservedly stated that the Complainant’s position was still available and that she could return to work immediately.”
Having regard to all the circumstances of the case the Court has come to the conclusion, on the balance of probabilities, that the Complainant was correct in her contention that the Respondent terminated her employment during her pregnancy and in such circumstances the Court has no alternative but to find that the termination was discriminatory. Therefore the Respondent’s appeal cannot succeed.
In all the circumstances of this case the Court is of the view that the quantum of the award decided upon by the Equality officer is fair and reasonable and accordinglythe Court affirms the award of compensation in the amount of €15,000 for the effects of the discrimination suffered by the Complainant.
The within appeal is disallowed and the decision of the Equality Tribunal is affirmed.
Signed on behalf of the Labour Court
11th November, 2013______________________
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.