INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 83 (1), EMPLOYMENT EQUALITY ACTS, 1998 TO 2011
HAIR CREATIONS T/A RAUSING LTD
(REPRESENTED BY PAUL A. FERRIS & CO SOLICITORS)
- AND -
(REPRESENTED BY RENNICK SOLICITORS)
Chairman: Ms Jenkinson
Employer Member: Mr Marie
Worker Member: Ms Tanham
1. Appeal of Adjudication Officer Decision No. DEC/E2015/152.
2. The Employer appealed the Decision of the Adjudication Officer to the Labour Court in accordance with Section 83(1) of the Employment Equality Acts, 1998 to 2011. A Labour Court hearing took place on 18th May, 2016. A further hearing took place on 29th June, 2016. The following is the Determination of the Court:
This is an appeal by Hair Creations t/a Rausing Limited against the decision of an Adjudication Officer/Equality Officer under the Employment Equality Acts 1998 – 2011.) Ms Shaunai Reilly claimed that she had been discriminated against on the grounds of gender contrary to section 6(2)(a) of the Employment Equality Acts1998-2015 (the Act)in relation to her conditions of employment and discriminatory dismissal in terms of Section 8 of the Employment Equality Acts (hereinafter ‘The Acts’).
For ease of reference in this determination the parties will be referred to by the designations given to them at the original hearing, Ms Shaunai Reilly will be referred to as “the Complainant” and Hair Creations t/a Rausing Limited will be referred to as "the Respondent".
The Adjudication Officer/Equality Officer made no finding on the allegations of discriminatory treatment in relation to the Complainant’s conditions of employment. However, he held that the Complainant was dismissed in a discriminatory manner on the grounds of her pregnancy and ordered the Respondent to pay her €10,000 in compensation for the discriminatory treatment suffered. The Respondent appealed this decision. There was no cross appeal by the Complainant.
The Complainant commenced employment on a four-year apprenticeship with the Respondent on 21stFebruary 2011 and she was given notice of the termination of her employment on 21stJuly 2014. The Complainant referred her claim to the Equality Tribunal on 31stJuly 2014. The Complainant submitted that she was dismissed while pregnant and that it had been known to the Respondent that she was pregnant since February 2014.
Summary of the Complainant’s Case
Ms Elaine Ruignok, B.L. instructed by Rennick Solicitors, on behalf of the Complainant claimed that the Complainant was discriminated against by the Respondent on the grounds of gender. Counsel said that during the period of her employment the Complainant did not receive a contract of employment. When the Complainant commenced employment with the Respondent she told management that she had been registered as an apprentice hairdresser by her previous employer from 27thAugust 2010. Ms Ruignok said that when the Complainant’s employment terminated the Respondent delayed by four weeks in completing her maternity benefit paperwork in connection with her claim and as a result she could not claim the benefit.
The Complainant gave evidence to the Court that she felt she was getting on well in her job with the Respondent and that her hairdressing apprenticeship was progressing well. She felt that she was building up a loyal clientele and was receiving praise and encouragement from management.
The Complainant became pregnant at the end of January 2014 and was immediately very ill as a result. She informed the Company of her pregnancy in February 2014 as her illnesses required her to attend hospital appointments.
The Complainant submitted that as soon as her employer learned that she was pregnant everything changed and she felt that she was treated very differently by management. She no longer received praise and encouragement and less experienced more junior staff were given priority for certain more desirable hairdressing duties over her.
The Complainant complained about an incident in the staff room in March 2014 when she says she was subjected to hostile and aggressive behaviour by her manager and that she was restrained from leaving the room. She says she was frightened by the incident, was crying hysterically and had to call her mother.
On 19thJuly 2014, the Complainant said that she complained that she was not given her full entitlement to breaks and she became weak and her legs were very swollen after a break of only ten minutes.
On 21stJuly 2014 the Complainant said that 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 come back after she had her baby and ‘they would see what they could do’.
The Complainant said that she had never been given any formal warnings as to her performance or conduct. Counsel for the Complainant said that she has not been provided with a qualification certificate by the Respondent, which is a necessary requirement to pursue her career.
Summary of the Respondent’s Position
Mr Diarmuid Murphy, B.L., instructed by Paul A. Ferris & Co. Solicitors, on behalf of the Respondent denied that the cessation of the Complainant’s employment was in any way connected to her pregnancy. He stated that the Complainant was on a four-year apprenticeship and that her employment was terminated solely due to the completion of that apprenticeship. He said that it is normal in the industry for apprentices to be ‘let go’ on completion of their apprenticeship. Mr Murphy stated that while there were various performance issues relating to the Complainant’s employment none of those issues were an operative factor in the decision to dismiss the Complainant. Rather, when the apprenticeship came to its natural conclusion the complainant was simply “not kept on”.
The Respondent referred to the legal status of Hairdressing Apprenticeships, Statutory Instrument 505 of 2007“Employment Regulation Order (Hairdressing Joint Labour Committee)”, which outlines the criteria which a person seeking recognition as a qualified hairdresser must fulfill. One of the mandatory criteria within the industry is the completion of a four year apprenticeship. It submitted that the Complainant was employed, as are all apprentices, by way of this four year apprenticeship.
The proprietor of the Company gave evidence to the Court on behalf of the Respondent. He told the Court that he had been in the hairdressing business for 55 years and had employed many apprentices during that time. He told the Court that an apprenticeship does not automatically lead to ongoing employment with the employer and that continued employment after the completion of an apprenticeship would depend on the availability of a position for a qualified hairdresser. He said that an employer has a window at the completion of an apprenticeship within which the employment could be terminated without a requirement to make a redundancy payment.
The proprietor told the Court that at the time the Complainant was finishing her apprenticeship his business was in a fragile financial position. He had a number of apprentices in and around that time but could not keep all of them on. He said that the month before the Complainant was let go he had similarly let another apprentice go whose apprenticeship had ended. He said that it was normal to give one months’ notice in that situation.
In relation to the Complainant, the proprietor told the Court that her situation was somewhat different as she had already completed six months of her apprenticeship when he employed her. He told the Court that her employment ended because her apprenticeship had ended not because of her pregnancy. He said that he had had many pregnant employees previously.
In relation to the Complainant’s evidence that he had told her to come back to him after having the baby and that he would see what he could do, he says that he told her what he told all departing apprentices, that she could come back to him and he would try and help her by referring her to another employer in the industry.
Counsel for the Respondent told the Court that the Complainant was obliged to provide a registration booklet or card at the outset of the employment, which she did not do. He said that the incoming apprentice is responsible for providing the employer with this document. This omission was the reason for the registration issues. Counsel told the Court that a replacement booklet can be obtained.
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.
Section 85A (1) of the Acts 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.”
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.”
Pregnancy has been held to be a ‘special, protected period’ in order to limit the adverse effects of discriminatory treatment on women workers and their unborn children. It follows therefore that a particular onus falls on an employer to respect the pregnancy.
Article 10 of the Pregnancy Directive Council Directive 92/85/EEC Pregnancy Directive  OJ L348/1 requires an employer to set out “duly substantiated grounds in writing” where a pregnant worker is dismissed. This is the level at which the bar is set. It is not sufficient for an employer to simply aver that a dismissal during pregnancy was for other unrelated reasons. Some persuasive evidence of an unrelated justification is required. As was held by this Court inAssico Assembly Limited v Corcoran(EED 033/2003) where the 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.”
Findings and Conclusions
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. In a line of authorities starting with its decision in Case C-77/88Dekker v Stichting Vormingscrentrum voor Jong Volwassen E.C.R. I-3941 the CJEU has made it clear that to disadvantage a woman in employment by reason of her pregnancy or maternity leave is to discriminate against her on grounds of her gender.
In this case it is not disputed that the Complainant was dismissed while pregnant. The Respondent has not produced evidence of a registered apprenticeship for the Complainant, therefore the Court is satisfied that there is a sufficient basis to raise an inference of discrimination and so the burden of proof passed to the Respondent to establish that there were grounds unrelated to her pregnancy that justified the dismissal.
The Respondent told the Court that the Complainant was employed for the duration of her apprenticeship and that her employment ended solely on the grounds of the completion of her apprenticeship.
Having considered the Respondent’s submissions in this regard, the Court is not satisfied, from the evidence before it, that the Complainant was employed on the basis of an apprenticeship in accordance with S.I. No. 505/2007 - Employment Regulation Order (Hairdressing Joint Labour Committee) (No.2), 2007. There was no evidence before the Court that the Complainant was registered as an apprentice, as per the requirements of the Employment Regulation Order. Neither was the Court presented with any evidence of the Complainant being furnished with a contract of employment at the outset of her employment that confirmed the basis of her employment as an apprentice in accordance with the Employment Regulation Order. While the proprietor of the Respondent told the Court that it was his understanding that the administration side of the Complainant’s employment as an apprentice was in order and taken care of by another employee in an administration capacity there was no direct evidence before the Court to confirm this position. It is not disputed that the Complainant had not, up to the date of the appeal hearing, been supplied with a qualification certificate verifying her completion of an apprenticeship in accordance with the requirements of the Employment Regulation Order.
The Court therefore finds that while the Company may have acted in good faith in relation to its understanding of the apprenticeship period, having regard to the high bar set by Article 10 of the Pregnancy Directive Council Directive 92/85/EEC Pregnancy Directive  OJ L348/1 the lack of evidence in support of its position undermines its case.
Accordingly, the Court finds that the complaint of discriminatory dismissal is well founded and decides accordingly.
In considering the appropriate remedy in this case, the Court is mindful of the special protection that the legislation affords a woman during pregnancy. The Court takes the view that the remedy in cases where it finds that a woman has been discriminated against because of her pregnancy must reflect the gravity of the breach and the importance of extending to her the protection of the Court. In this case the Court is satisfied that the Complainant was discriminated against because she was pregnant with the result that she lost her employment during the protected period.
The Court has taken this into account when considering the level of compensation to award and finds that the sum awarded by the Equality Officer is sufficient in all the circumstances. The decision of the Equality Officer is, therefore, affirmed.
The complaint of discriminatory dismissal is well founded. The Company’s appeal is rejected. The Court orders the Company to pay the Complainant compensation in the sum of €10,000. No element of this award is in respect of pecuniary loss. The Decision of the Equality Officer is affirmed.
The Court so Determines.
Signed on behalf of the Labour Court
03 August, 2016______________________
Enquiries concerning this Determination should be addressed to Ceola Cronin, Court Secretary.