EMPLOYMENT EQUALITY ACTS 1998-2015
DEC – E2015-165
(represented by Cathal McGreal B.L. instructed by Padraig O’Morain, Hughes and Associates Solicitors)
Kilbush Nurseries Ltd
(represented by Graham Pickett, HR Consultant)
File reference: et-149850-ee-14
Date of issue: January 2016
Keywords: Employment Equality Acts, Gender, Disability, Harassment, discriminatory dismissal, pregnancy complications
1.1 The case concerns a claim by Ms Blumberga against Kilbush Nurseries Ltd. Her claim is that she was discriminatorily dismissed on the grounds of gender and disability in terms of 6(2)(a) and 6 (2)(g) of the Employment Equality Acts 1998 - 2011 [hereinafter referred to as ‘the Acts’. She also claims harassment on the same grounds. A complaint of victimisation was withdrawn at the hearing.
1.2 Through her solicitor, the complainant referred a complaint under the Acts to the Director of the Equality Tribunal on 5th December 2014. On 5th November 2015 in accordance with his powers under Section 75 of the Acts, the case was delegated to me, Orlaith Mannion, 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 this date, my investigation commenced. Submissions were received from both parties and a joint hearing was held on 15th December 2015 as required by Section 79(1) of the Acts.
1.3 This decision is issued by me following the establishment of the Workplace Relations Commission on 1st October 2015, as an Adjudication Officer who was an Equality Officer prior to 1st October 2015, in accordance with section 83(3) of the Workplace Relations Act 2015.
Summary of the complainant’s case
2.1 The complainant commenced employment with the respondent as a Greenhouse worker on a fixed term contract from 14th May 2013 until 20th December 2013 for the tomato-growing season. Her role entailed picking tomatoes, grading and putting them into boxes. During this (first) season, there were no issues with her employment there.
2.2 In April 2014 Ms Blumberga rang Mr MF (Managing Director) to inquire if there was any work available. She submits that the respondent was very happy to take her back and she resumed her employment with the respondent on 28th April 2014. She signed a second fixed term contract on 10th May 2014. On 27th May Ms Blumberga fell ill at work. She acknowledges that Mr MF readily agreed to her allowing her to go home that day. She texted Mr MF to let him know that she did not feel able to go into work the following day. Instead she attended her GP who confirmed that she was pregnant. She returned to work the next day (29th May) and informed Mr MF that she was pregnant. Both he and his brother Mr JF congratulated her.
2.3 A few days later (4th June 2015), she fell ill again and attended her Obstetrician/Gynaecologist where she was diagnosed with a kidney infection and a threatened miscarriage as she had a haematoma around the gestational sac and an ovarian cyst. She was given a sick certificate for a fortnight. Ms Blumberga texted Mr MF that evening and he replied ‘No problem. See you when you are better’. On 19th June she returned to work (after a fortnight of unpaid sick leave) feeling much better and was looking forward to working out her contract there.
2.4 The following day she was called up to the office by Mr MF. She submits that he told her ‘We can’t keep you on because we don’t have a lighter job for you’. She maintains that Mr MF went on to say that he had a business to run and she would probably be sick for the rest of the pregnancy. Ms Blumberga states that she was shocked so she double-checked what he meant. She asked ‘Am I fired?’ She submits that he replied in the affirmative. She became upset and as she was leaving she maintains that he said to ‘Next time keep your legs closed’. She submits she was appalled and surprised at this comment as she said it was out of character for him. Her P45 was dated on that date so she submits that it was clear that there would be no discussion regarding reasonable accommodation or a potential appeal of her dismissal. She received an abrupt text message from Mr MF to collect her P45 on 2nd July. She only worked four days for the respondent after notifying them that she was pregnant. She submits that the respondent did not want the inconvenience of a complicated pregnancy and therefore invented excuses to get rid of her.
2.5 She submits that the respondent breaches its own procedures in their employment handbook as nothing she did constituted gross dismissal. She was eager to stay working and was later employed until her date of confinement with no problems. The excellent employment reference from this employer was submitted as evidence. On 31st January 2015, she had a baby girl.
Summary of the respondent’s case
3.1 The respondent rejects all allegations of discrimination and/or harassment. It is a family business established in 1940 in Rush, Co. Dublin. They company is involved in growing and supplying tomatoes to the grocery retail trade. The company employs approximate 12 staff all year round rising to 20 during the peak season. The gender balance is usually approximately 50:50.
3.2 Because the company supplies multi-national enterprises like Marks & Spencers and Tesco, they are obliged to undergo an audit every two years. This audit covers many aspects of the business including staff welfare – it may include interviews with employees.
3.3 The respondent accepts that Ms Blumberga was employed on a fixed-term contract in 2013. In direct evidence, Mr MF stated her performance was not outstanding. However, he accepts that he did employ her the following year. The respondent submits that the second contract was a probationary contract. She received this contract of employment signed by himself on 10th May 2014.
3.4 He maintains that on announcing she was pregnant on 29th May 2014, he asked for a letter from her GP confirming that she was pregnant in order to commence a Health and Safety risk assessment. He points out that the medical certificate received for the fortnight that she was on sick leave merely said ‘kidney infection’.
3.5 Mr MF submits that two weeks after Ms Blumberga started working for them again that he received complaints from others that she was not pulling her weight – she was taking long breaks and making phone calls during work hours.
3.6 Within the first week of her employment, the respondent submits that her picking rate was 30% less than other team members. On 20th June the respondent submits that Mr JF (Director of the respondent) observed her working slowly. He and Mr MF had a discussion and decided that they could not put up with her poor performance any longer. They also agreed to dismiss somebody else for poor performance that day. Their mother went to the accountant to pick up the P45s for the two employees.
3.7 Mr MF submits that he was within his rights to dismiss her as she was still on probation. He agrees that she got upset in the meeting and that is why he delayed giving her P45.
3.8 The respondent submits that they have had three women working for them while pregnant in recent years with no reduction in performance. They were allocated lighter duties as their pregnancy progressed. A former employee gave direct evidence that she worked through her pregnancy, went on maternity leave and returned to work for the respondent for a short period.
3.9 Mr MF vehemently denies making the scurrilous remark at Paragraph 2.4. The respondent points out that the complainant did not seek an alternative role when threatened with dismissal.
Conclusions of the Equality Officer
4.1In reaching my decision I have taken into account all of the submissions, written and oral, made by the parties. Section 6 (1) of the Act provides that discrimination shall be taken to occur where on any of the discriminatory grounds mentioned in subsection (2) one person is treated less favourably than another is, has been or would be treated. The discriminatory grounds in this case are gender and family status.
4.2 Section 85A of the Act 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 that she suffered discriminatory treatment. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised. Prima facie evidence has been described as ‘evidence which in the absence of any credible contradictory evidence by the employer would lead any reasonable person to conclude that discrimination has probably occurred.’
4.3 There are two issues for me to decide:
(i) Was the complainant discriminatorily dismissed on the grounds of gender and disability?
(ii)Was the complainant harassed in terms of Section 14A(7) and whether the respondent has a viable defence against a claim of harassment as per Section 14A(2) of the Acts?
4.4 Generally I preferred the evidence of the complainant. Almost everything she said could be verified by documentary evidence e.g. medical certificates, text messages kept and references from employers after her employment for the respondent was terminated. In contrast, the respondent had no contemporaneous notes to cororoberate their version of events. For example, there is no record whatsoever of her supposed underperformance even though Mr MF, Mr JF and their nephew all said that her performance was 30% slower than the other workers. All were evasive on how they came up with this exact figure. I was also shocked at the respondent’s limited knowledge of employment law and fair procedures. A second contract is not a probationary contract and even if it was, there is no de minimus amount of time before an employee enjoys the benefit of the Employment Equality Acts. No procedures were followed in relation to her dismissal – there were no witnesses and no appeal was offered. That Ms Blumberga was supposed to suggest alternative roles for herself in the company while Mr MF was holding her P45 ignores the reality of power relationship between employer and employee. It stretches credibility beyond its limits.
4.5 The entire period of pregnancy and maternity leave constitutes a special, protected period as outlined in the Court of Justice of the European Union Decisions in Webb v EMO Air Cargo (UK) Ltd Brown v Rentokil Ltd and Dekker v Stichting Vormingscentrum. In Brown v Rentokill Ltd, the Court of Justice explains why pregnancy is a special protected period:
Article 2(3) of Directive 76/207 recognises the legitimacy, in terms of the principle of equal treatment, first, of protecting a woman's biological condition during and after pregnancy and, second, of protecting the special relationship between a woman and her child over the period which follows pregnancy and childbirth.
It was 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, women who have recently given birth or women who are breastfeeding, including the particularly serious risk that pregnant women may be prompted voluntarily to terminate their pregnancy, that the Community legislature, pursuant to Article 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 (tenth individual Directive adopted within the meaning of Article 16(1) of Directive 89/391/EEC) (OJ 1992 L 348, p. 1), which was to be transposed into the laws of the Member States no later than two years after its adoption, provided for special protection to be given to women, by prohibiting dismissal during the period from the beginning of their pregnancy to the end of their maternity leave. (my emphasis)
4.6 The Labour Court has found that ‘only the most exceptional circumstances not connected with the condition of pregnancy allow a woman to be dismissed while pregnant. It is equally well settled law that the dismissal of a pregnant woman (which can obviously only apply to a woman) raises a prima facie case of discrimination on the gender ground. Once such a case has been raised the burden of proof shifts and it is for the respondent employer to prove that that the discriminatory dismissal did not take place.’
4.7 The respondent maintains that the complainant was dismissed for poor performance. The fact that Ms Blumberga was reemployed by the respondent in a time of high unemployment severely weakens the respondent’s case that she was an underperformer. That she was employed shortly afterwards, worked up to her date of confinement and received an excellent reference from that employer also does not support the respondent’s case. That she only worked four days after returning from sick leave links the circumstances of the case to the ground of disability. I accept the complainant’s evidence that Mr MF did say that she was likely to be sick for the rest of the pregnancy and he has a business to run. I fully believe the respondent’s evidence that other people continued to work there during the pregnancies but I find that the complainant’s health complications in the early stages of pregnancy was the main reason that the respondent terminated her employment. Therefore the complainant has established a prima facie case of discrimination on the grounds of gender and disability and the respondent has failed to rebut it.
4.8 Harassment is defined in Section 14A (7) of the Acts as any form of unwanted conduct related to any of the discriminatory grounds which has the purpose or effect of violating a person's dignity and creating an intimidating hostile, degrading, humiliating or offensive environment for the person.
4.9 One of the reasons that the complainant’s evidence was credible was that she was frank about things that occurred that did not assist her case. She said that she thought that Mr MF was a nice man and that he did congratulate her when she informed him that she pregnant. She submits that is why she so shocked when he said to ‘keep her legs closed the next time’. There is a ring of truth about this evidence. Therefore, I accept that, although it was out of character for him, that Mr MF did make this comment. It is a defence for the employer if it can prove that it took reasonably practicable steps to prevent the person from harassing the victim or any class of persons which includes the victim and to prevent the victim from being treated differently in the workplace or otherwise in the course of the victim’s employment and where such treatment has occurred to reverse its effects. The respondent has no written anti-harassment policy and the comment was made by the Managing Director. Therefore the respondent is not entitled to avail of the 14A (2) defence.
5.1 I have concluded my investigation of Ms Blumberga’s complaint. Based on all of the foregoing, I find, pursuant to Section 79(6) of the Act, that
(i) Ms Blumberga was discriminatorily dismissed by Kilbush Nurseries on the grounds of gender and disability
(ii) the complainant was harassed in terms of Section 14A(7) and the respondent has not a viable defence against a claim of harassment as per Section 14A(2) of the Acts
5.2 In accordance with Section 82 of the Act, I order the respondent:
pay the complainant €20,000 in compensation for breaches of the Employment Equality Acts. The award is redress for the infringement of Ms Zastawna’s statutory rights and, therefore, not subject to income tax as per Section 192A of the Taxes Consolidation Act 1997 (as amended by Section 7 of the Finance Act 2004).
Adjudication Officer/Equality Officer
 EE5/1986 Gibney v Dublin Corporation
  ECR 1-3567
  ECR 1-04185
  ECR 1-3941
 Intrium Justitia v Kerrie McGarvey Determination No. EDA095