EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2015-152
PARTIES
Shaunai Reilly
-V-
Hair Creations t/a/Rausing Ltd
(Represented by Paul Ferris, Solicitor)
File reference: EE/2014/423
Date of issue: December 2015
HEADNOTES: Employment Equality Acts Sections 6 (2) (a) as amended by section 4 the Employment Equality Act 2004 - Conditions of Employment, Pregnancy, and Discriminatory dismissal.
1 DISPUTE
1.1 This dispute concerns a claim by Ms Reillythat she was discriminated against by the company on the grounds of gender contrary to section 6 (2) of the Employment Equality Acts in relation to conditions of employment and discriminatory dismissal in terms of sections 8 of the Acts.
1.2 The complainant referred her claim to the Director of the Equality Tribunal on 31st July 2014 under the Employment Equality Acts. On 8th September 2015, in accordance with his powers under section 75 of the Acts, the Director delegated the case to me, Pat Brady, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts, on which date my investigation commenced.
1.3 Submissions were received from both sides and in accordance with Section 79(1) of the Acts and as part of my investigation I proceeded to a hearing on September 10th 2015.
1.4 This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 83 (3) of the Workplace Relations Act 2015.
2 COMPLAINANTS' SUBMISSION
2.1 The complainant started work for the respondent on 21st February 2011 and she was given notice of the termination of her employment on July 21st 2014.
2.2 The complainant submits that she was dismissed while pregnant and that it had been known to the employer that she was pregnant since February 2014. Since informing her employer of her pregnancy she felt as if she was being treated unfairly in relation to the allocation of work.
2.3 She also complained about an incident in the staff room in July 2014 when she says she was subjected to hostile and aggressive behaviour by her manager at a point when she was eleven weeks pregnant, and that she was restrained from leaving the room when she wished to go. She says she was frightened by the incident, was crying hysterically and had to call her mother. She denies using strong language in the course of the incident.
2.4 She also complained that she was not given her full entitlement to breaks and on July 19th 2014 she became weak, and her legs were very swollen after a break of only ten minutes.
2.5 On July 21st she was approached by one of the Directors who told her that there was no work for her and that the business would have to let her go, saying to return after she had her baby and ‘they would see what they could do’.
2.6 She had never been given any formal warnings as to her performance or conduct.
3 RESPONDENT'S SUBMISSION
3.1 The respondent stated that the complainant was on a four-year apprenticeship and that her employment terminated only because that apprenticeship had been completed. It is normal in the industry for apprentices to be ‘let go’ on completion of their apprenticeship. However, the complainant stated in her evidence that she did not have a contract of employment.
3.2 It referred to various performance issues and to the complainant’s sick leave record and her poor attendance at classes but stated that this was not the reason for terminating her employment.
3.3 Regarding the ‘Staff room incident witness AM said he went to talk to the complainant because there had been an incident between her and a co-worker. He said she refused to talk about it and walked past him, ‘blanking’ him.
3.4 The company states that employees always get their full entitlement to breaks and that her manager had agreed she could go home when she brought to her attention her poor health on July 19th
4 FINDINGS & CONCLUSIONS OF THE EQUALITY OFFICER
4.1 I have to decide if the complainant was dismissed in a discriminatory manner on the grounds of pregnancy. In reaching my decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence presented at the hearing.
4.2 Section 85A (1) of the Employment Equality Acts, 1998 – 2007 states: “Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.” This means that the complainant must establish primary facts upon which the claim of discrimination is grounded and then the burden of proof passes to the respondent.In the current case there was no dispute regarding the claimant’s pregnancy and so the burden of proof passed to the Respondent.
4.3 Section 6 (2A) of the Act is as follows
(2A) 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.
Therefore any unfavourable treatment of an employee on grounds of their pregnancy will be unlawful direct discrimination.
4.4 I have considered the Respondent’s submission about the status of the complainant as an ‘apprentice’. Traditionally, when apprenticeship was more common a contract of apprenticeship could be distinguished from a contract of employment on the grounds that its primary purpose was training and the work for the employer was secondary, and it was usually a fixed term contract.
4.5 However, while the employer could offer no evidence of the contract at the hearing to distinguish the complainant’s status from that any other worker she (the complainant) did give evidence that she understood her contract would come to an end after the training period. (Subsequent to the hearing the respondent submitted a contract of employment, received by the Tribunal on September 18th, which it says, issued to the complainant on May 4th 2011. It is of no assistance to the respondent in that it is in all respects a standard Contract of Employment, and for example states that retirement age will be sixty years, and it is in any event unsigned.
4.6 I do not consider that the so-called apprenticeship sufficiently distinguishes her position from that of any person on a normal contract of employment, although I accept there is a learning component to the employment. I find the respondent may have acted in good faith in relation to its understanding of the apprenticeship period but the lack of any written evidence of this contractual position seriously undermines its case. In any event that understanding of apprenticeship is quite an anomaly in the context of the requirements of current Irish employment law
4.7 While the key test is whether the dismissal was ‘pregnancy-related’, pregnancy has been held to be a ‘special, protected period’ in order to limit the adverse effects of dismissal on women workers and their unborn children. It follows therefore that a particular onus falls on an employer to respect the pregnancy. The case law of this Tribunal and the Labour Court shows a strong emphasis being placed on Article 10 of the Pregnancy Directive Council Directive 92/85/EEC Pregnancy Directive [1992] OJ L348/1 which requires an employer to cite “duly substantiated grounds in writing” where a pregnant worker is dismissed. This is a measure of the test that must be met by an employer.
4.8 Thus the bar is set at a high level. It is not open to an employer simply to aver that the dismissal was not pregnancy-related, as indeed it could and did in this case.
For example in the case of Assico Assembly Limited v Corcoran (EED 033/2003) the
Labour Court held: -
“Where the employee is dismissed while pregnant or on maternity leave, both legislation and case law states that the employer must show that the dismissal was on exceptional grounds not associated with her pregnancy and such grounds, in the case of dismissal, as a matter of law and in the case of discrimination as a matter of good practice should be set out in writing.”
COUNCIL DIRECTIVE 92/85/EEC - Of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding (tenth individual Directive within the meaning of Article 16 (1) of Directive 89/391/EEC)
Article 10
Prohibition of dismissal
In order to guarantee workers, within the meaning of Article 2, the exercise of their health and safety protection rights as recognized 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.
5. DECISION
5.1 I have investigated the above complaints and make the following decisions in accordance with section 79 of the Acts that:
· The respondent did dismiss the complainant in a discriminatory manner on the grounds of pregnancy.
5.2 I order the respondent to pay the complainant €10,000, 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.
____________________
Pat Brady
Equality Officer
December 2015