Employment Equality Acts 1998-2011
Decision No: DEC-E2017-001
A store Manager
Represented by Tracey Solicitors
(Represented by Peninsula )
File No: et 157608-ee-15
Date of issue 9th January 2017
This dispute involves a claim by A store manager (hereinafter referred to as ”the complainant”) that she was discriminated against by A Pharmacy (hereinafter referred to as ” the respondent”), on the grounds of gender and family status contrary to section 6 of the of the Employment Equality Acts (hereinafter referred to as ‘the Acts’) in terms dismissal in accordance with section 8 of the Acts
2.1 The complainant referred a complaint under the Employment Equality Acts, 1998 and 2011 to the Equality Tribunal on 9th July 2015. On the 9th June 2016, in accordance with his powers under the Acts the Director delegated the complaint to me, Mr. Peter Healy, an Adjudication Officer for investigation and decision and for the exercise of other relevant functions under Part VII of the Acts. Submissions were received from both parties and a hearing of the complaint took place on the 1st of December in Ennis, Co Clare.
2.2 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.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 The Complainant began her employment with the Respondent, who are in the pharmacy business, on the 7th of April 2014. The Complainant had previously been employed by another organisation and had held a full-time, contract of indefinite duration with that organisation. The Complainant was directly approached by a recruitment agent, acting on behalf of the Respondent, who proposed that she apply for a position of Store Manager with the Respondent company. The Complainant submits that she was informed by the agent that the post she was being invited to apply for was a full-time, permanent post, i.e a contract of indefinite duration.
3.2 The Complainant engaged in the application process and was interviewed. During the interview process, the Complainant submits that she made it clear at all times to the Respondent and agents for the Respondent that she required job security and that she would not leave her current position unless equivalent job security was assured in her post with the Respondent. She outlined that she had a contract of indefinite duration with her current employer. The Complainant submits that she was specifically informed by the Human Resources Manager for the Respondent that the post was a full time, permanent position. The Complainant was successful in the interview process and was offered the post of Store Manager.
3.3 Prior to starting work with the Respondent, the Complainant requested a contract from the recruitment agency and was informed that this would be provided on her first day of work as part of her induction. Despite this assurance, no contract was provided on the first day. The Complainant submits that she sought a copy of her contract on several occasions from the Human Resources Manager over the following three months but the contract was never provided.
3.4 On or about the 25th of August 2014, when the Complainant had been in employment for over four and a half months, the Complainant suffered a miscarriage and had to leave early. On that occasion her manager appeared sympathetic and concerned. However, some three weeks later, on the 11th of September 2014, the Complainant was finally provided with her contract of
employment and noted with consternation that it was a one year fixed term contract, rather than a contract of indefinite duration. The Complainant submits that she immediately raised the issue with the HR manager, who apologised for not having provided a contract sooner and who outlined that this was a new policy with all new employees and that once the twelve month fixed term was completed a contract of indefinite duration would issue.
3.5 The Complainant submits that as Store Manager she worked hard and applied herself fully to expanding the business. She was directly responsible for an increase in store sales, expansion of product and service offerings, acquiring new stock ranges which had previously been unattainable by the store and implementing sales plans and store targets. The complainant submits that at all times performance reviews and work feedback was positive. There were discussions about developing the Complainant’s role into Area Management.
3.6 The Complainant became pregnant again in October 2014 and informed the Respondent in December 2014. The Complainant submits that from that time onwards, the discussions about developing the her role into Area Management ceased.
3.7 The Complainant submits that on the 24th of February 2015 the Respondent notified the Complainant that her contract of employment would not be renewed upon expiration of the fixed term on the 6th of April 2015. The Complainant was extremely shocked and distressed at being so notified, as it was contrary to all previous assurances and her legitimate expectation at that time. All work performance feedback had been positive. She had been assured that she would be given a contract of indefinite duration from April 2015 onwards. The Complainant sought an explanation for the termination of her employment and was informed that due to organisational needs the role of Store Manager was no longer required. The Complainant did not agree that the Respondent were entitled to terminate her employment upon the expiration of the fixed term as she had been assured, and had acted in reliance upon said assurance, that she would be provided with a contract of indefinite duration from that point onwards.
3.8 The Complainant’s employment ceased against her wishes on the 6th of April 2015. Some nine days later the Complainant noted that another individual was named as Store Manager on the Respondent’s website. The Complainant understands that another individual has now been employed as Store Manager by the Respondent. The Complainant believes that her employment was terminated as a direct consequence of her pregnancy. The Complainant absolutely refutes that the Respondent was entitled to so terminate her employment.
3.9 It is submitted that the Complainant was, in law and in fact, unfairly dismissed and subjected to discrimination by the Respondent by their unlawful termination of her employment in the context of her pregnancy. In light of the foregoing it is respectfully submitted that the Tribunal should find in favour of the Complainant.
4. SUMMARY OF RESPONDENT'S WRITTEN SUBMISSION
4.1 The respondent rejects all aspects of the complainant and any allegation that it would discriminate against female employees in regards to pregnancy. The respondent points out that there were three other pregnant employees at the time relevant to this complaint all of whom continue to have an excellent employment relationship with the company.
4.2 The respondent submits rejects the complainant’s assertion that she entered into employment upon the “assurance made at all times by the Respondent…that she was being offered a contract of indefinite duration. It was an express term of her contract of employment ….The claimant acted to her detriment in terminating her previous employment.” It is submitted that the complainant was fully aware of the terms of her employment and was aware at all times that she had been issued with a fixed term contract for a duration of 12 months to expire on the 6th April 2015 as outlined on the contract of employment.
4.3It is submitted that the respondent did not breach the Act as alleged and with that in mind, the respondent respectfully requests that the Adjudication Officer find that the claim is not well founded and should fail.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issue for decision by me is whether or not the complainant was dismissed by the respondent, in circumstances amounting to discrimination, on grounds of gender, in terms of section 6 of the Acts and contrary to section 8 of the Acts, In reaching my decision I have taken into consideration all of the submissions, oral and written, made to me by the parties as well as the evidence given by the witnesses at the hearing.
5.2 Section 85A of the Employment Equality Acts 1998 and 2004 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 the she suffered discriminatory treatment. It is only when those facts have been established and are regarded by an Equality Officer as sufficient to raise an inference of discrimination that the onus shifts to the respondent to rebut the inference of discrimination raised.
5.3 In Melbury Developments v Arturs Valpetters  the Labour Court, whilst examining the circumstances in which the probative burden of proof operates stated that a complainant "must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn". It added that "the burden of establishing the primary facts lay fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule”. That Court more recently extended this analysis when it affirmed the approach adopted by this Tribunal in Businkas v Eupat Ltd that one of the facts which a complainant must establish is that there was a difference in treatment between him/her and another person who does not possess the relevant protected characteristic, (see Glasgow City Council v Zafar  2 All ER 953)
5.4 The entire period of pregnancy and maternity leave constitutes a special protected period as outlined in the European Court of Justice decisions in Webb v EMO Air Cargo (UK) Ltd  ECR 1-3567, Brown v Rentokil Ltd ECR 1-04185 and Dekker v Stichting Vormingscentrum  ECR 1-3941. Furthermore, it is settled law that where discriminatory treatment takes place during that special protected period, it raises a prima facie case of discrimination on the gender ground.
5.5 In the instant case, the parties agree on the timeline of events and it is accepted that the complainant was pregnant and that the respondent was aware of that pregnancy. However, the issue for consideration by me is whether the complainant was subjected to discrimination by the respondent, specifically if,
1. The respondent had from the outset intended to keep the respondent employed indefinitely but changed their minds within the first few months and generated a one year contract to which they forged her signature.
2. Ended the employment at the end of the one year contract during a second pregnancy.
5.6 In relation to the first point above the respondent has presented direct oral evidence from three witness, two of whom were present at the interview ( the HR manager and a senior manager) that it had always been intended that the complainant’s role be for one year and was contingent on reaching sales targets.
5.7 While the recruitment process was badly documented there is one line of reference to a one year contract in the interview notes. Taking into account the circumstances of the recruitment process I can accept the reason for the poor record keeping was for the following reasons. The respondent did not interview anyone else for the role, they were impressed with complainants C.V. and hired her immediately without searching for alternative candidates. I am satisfied that the respondent kept bad notes of the recruitment process as there was no competitive element. They simply recruited the complainant to meet the needs of a rapidly expanding business.
5.8 In addition to the interview notes the respondent has presented a one year contract that was issued to the complainant. While the respondent disputes the date of issue the fact of it remains and that is was issued to the complainant. The respondent has presented me with no written evidence in relation to what she describes as an indefinite employment relationship. Crucially, at the hearing of this complaint the complainant gave direct evidence that she took no significant action at the time she submits that she was informed of a one year contract. In addition the agreed fact that the role in question was target driven and specifically intended to expand the business, enforces the respondent’s version of events.
5.9 Taking into account my conclusions at 5.6 to 5.8 above I must accept that respondent’s evidence (direct oral evidence from three credible witnesses) of an intended one year employment relationship far outweighs that presented by the complainant. Taking into account the entirety of the evidence it is more probable that there was some confusion regarding the nature of the employment and that it was expected from the outset that the issue of a one year contract would not arise due the expected success of the venture.
5.10 It is the complainant’s contention that the respondent began discriminating against here because she was trying to start a family. I note that the respondent had at the time 27 female employees (three ongoing pregnancies) and one male employee when they (in a very hasty manner) recruited the complainant. The respondent has an established pattern of employing females who have a similar age profile as the complainant. In addition there is no evidence of overt discrimination (except for one alleged overheard comment by a member of staff). I find it improbable that the respondent would have recruited the complainant in the manner alleged if it had been his intention to discriminate. I accept the respondents Account that the position of store manager reverted to the owner manager of the company.
5.11 The complainant has made no allegations of overt discrimination with the exception of one occasion on which she overheard a comment about the number of pregnancies in the company. I was presented with direct denial at hearing by the person whom it was alleged made the comment. I accept the respondent’s account in relation to this one instance. The complainant’s account of the employment relationship at all other times is of a considerate and polite relationship.
5.12 Having regard to the foregoing consideration by the Labour Court and having considered the complainants evidence, I am satisfied that the complainant has not established facts from which it can be shown that she was treated in a less favourable manner than others on the ground of gender or family status.
6. DECISION OF THE EQUALITY OFFICER.
6.1 5.1 I have concluded my investigation of the complaint. Based on all of the foregoing, I find, pursuant to Section 79(6) of the Act, that
(i) the respondent has not discriminatorily dismissed the complainant on the grounds of gender or family status.
(ii) the respondent has not discriminated against the complainant in regards to her conditions of employment on the grounds of gender or family status.
Adjudication Officer/Equality Officer
9th January 2017
 EDA 0917
 Arturas Businkas v Eupat Ltd (In Liquidation) EDA103