FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 83, EMPLOYMENT EQUALITY ACTS, 1998 TO 2011 PARTIES : A CATERING BUSINESS - AND - A WORKER (REPRESENTED BY J D SCANLAN & CO, SOLICITORS) DIVISION : Chairman: Mr Duffy Employer Member: Mr Murphy Worker Member: Ms Tanham |
1. Appeal under Section 83 of the Employment Equality Acts, 1998 to 2011.
BACKGROUND:
2. The Employer appealed the Decision of the Equality Officer to the Labour Court on 20th July, 2015 in accordance with Section 83 of the Employment Equality Acts, 1998 to 2011. A Labour Court hearing took place on 26th November, 2015. The following is the Determination of the Court:
DETERMINATION:
This is an appeal by the joint proprietors of a catering company against the Decision of the Equality Tribunal in a claim by a worker that she was discriminated against on grounds of gender, by reason of pregnancy. The claim was taken under the Employment Equality Acts 1998 to 2011 (hereafter the Acts). In this Determination the parties are referred to as they were at first instance. Hence, the proprietors are referred to as the Respondents and the worker is referred to as the Complainant.
Background
At all times material to the case the Respondents owned and operated a catering business. They are husband and wife. The Complainant was employed by the Respondents in or about July 2011. She was dismissed on 20thSeptember 2012. The Complainant became pregnant in or about August 2012. She miscarried in September 2012 and was absent from work for approximately two weeks. On her return to work, on 20thSeptember 2012, she was given one weeks’ notice of dismissal. The stated reason for the dismissal was that the Respondents were unable to continuing paying her wages.
The Complainant referred a complaint under the Acts on 13thNovember 2012. In her complaint the Complainant claimed that her dismissal was on grounds of gender by reason of pregnancy.
The claim was heard by the Equality Tribunal on 28thApril 2015. The Equality Tribunal issued its decision on 25thJune 2015 by which the complaint was upheld. The Complainant was awarded compensation in the amount to €12,000. By notice dated 24thJuly 2015 the Respondents appealed to this Court.
Facts
The material facts of the case are not seriously in dispute between the parties. Those facts, as admitted or as found by the Court, can be summarised as follows: -
- At or about the time of the impugned dismissal of the Complainant the Respondents’ business was experiencing serious financial and trading difficulties. The business eventually closed in December 2013. A male employee was also dismissed at the same time. The Respondents contend that the dismissal of the Complainant and that of her male colleague was on grounds of redundancy.
During the Complainant’s absence following her miscarriage, one of joint proprietors assumed the duties performed by the Complainant. It was decided that this arrangement should continue. Following the dismissal of the male employee the other joint proprietor performed the duties performed by that employee. Neither the Complainant nor that male employee was replaced.
- At or about the time of the impugned dismissal of the Complainant the Respondents’ business was experiencing serious financial and trading difficulties. The business eventually closed in December 2013. A male employee was also dismissed at the same time. The Respondents contend that the dismissal of the Complainant and that of her male colleague was on grounds of redundancy.
The issue arising for consideration in this case is whether the Complainant’s dismissal was on grounds of, or related to, her pregnancy or whether it was wholly on grounds of redundancy. In advancing the Complainant’s case Counsel relied on the well-known principle adumbrated by the ECJ (now the CJEU) in case C-177/88,Dekker v Stichting Vormingcentrum voor Junge Volwassenen[1990] ECR 1-3841 to the effect that dismissal on grounds of pregnancy constitutes discrimination on grounds of gender which cannot be justified. The Respondents pointed out that at the time of the dismissal the Complainant was not pregnant. They contend that the decision to dismiss the Complainant was taken solely on economic grounds as the business could no longer afford to pay her wages. It is the Respondents’ case that the dismissal was wholly on grounds of redundancy and was unrelated to the fact that she had been pregnant.
In light of the positions taken by the parties the net issue for determination in this case is whether, at the time of the dismissal, the Complainant came within the special protection against dismissal afforded to pregnant women in both domestic and European law.
Discussion and Conclusions
It is well settled that pregnant women and those who have recently given birth and are on maternity leave are afforded special protection in law against dismissal. The legislative provisions and the legal principals in cases concerning dismissal during pregnancy were extensively considered by this Court in Determination EDA128,Deborah Healy v Trailer Care Holdings Limited. In that case this Court stated: -
- 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.
- “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”
The Equality Officer appears to have accepted that the actual reason for the Complainant’s dismissal was redundancy. But he appears to have applied a form of‘but for’test in reaching his decision. He found that but for the fact that the Complainant has been absent for two weeks because of her miscarriage the Respondent would not have put alternative arrangements in place to cover her work which turned out to be satisfactory and cost effective. He then appears to have concluded that ‘but for’ the Respondents having put those arrangements in place the Complainant would not have been made redundant when she was.
Section 6 of the Act provides that discrimination occurs where a person is treated less favourably“on any of the grounds specified in subsection (2)”. That wording mandates an enquiry as to the reason for the impugned treatment. Consequently the Court must decide whether the reason why the Complainant was dismissed related to her pregnancy or whether it related to the Respondent’s desire to reduce costs by carrying on the business with fewer employees.
The Court has no doubt that in deciding to dismiss the Complainant the Respondents were solely motivated by a desire to reduce costs. During the Complainant’s absence one of the joint proprietors had taken over the duties that the Complainant was employed to perform and it was decided that cost savings could be made by continuing that arrangement. It is significant that a man was also made redundant at the same time and that his duties were taken over by another of the joint proprietors. This is corroborative of the Respondents’ contention that the Complainant's condition was not an influencing factor in the decision to reduce the size of the workforce. It might cogently be argued that but for the Complainant’s absence, which was connected with pregnancy or maternity, the Respondents’ may not have come to the full realisation that the Complainant’s role could be performed by one of joint proprietors. However, the appropriate test in a case such as this is to establish the reason why the Complainant was treated as she was. On all of the evidence before it the Court can only come to the conclusion that the sole reason why the Complainant was dismissed was because a situation of redundancy, as that term is properly defined, had come about.
Having so concluded, it follows that her claim cannot succeed.
Outcome
For all of the reasons set out herein the Court must hold that the Complainant was not discriminated against on grounds of her gender by reason of pregnancy. The Respondents’ appeal is allowed and the Decision of the Equality Tribunal is set aside.
Signed on behalf of the Labour Court
Kevin Duffy
2nd December 2015______________________
SCChairman
NOTE
Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.