SECTION 83 (1), EMPLOYMENT EQUALITY ACTS, 1998 TO 2011
WRIGHTS OF HOWTH SEAFOOD BARS LIMITED
(REPRESENTED BY MANAGEMENT SUPPORT SERVICES (IRELAND) LIMITED)
- AND -
(REPRESENTED BY HOBAN BOINO SOLICITORS)
Chairman: Ms Jenkinson
Employer Member: Ms Connolly
Worker Member: Mr Shanahan
1. Appeal of Adjudication Officer Decision No. ADJ-00001004 CA-00001.
2. The Employer appealed the Decision of the Adjudication Officer to the Labour Court on the 8 March 2017.A Labour Court hearing took place on 27 September 2017. The following is the Determination of the Court:
This is an appeal by Wrights of Howth Seafood Bar Limited against the decision of an Adjudication Officer under the Employment Equality Acts 1998 – 2015 (the Acts). The Complainant alleged that she was discriminatorily dismissed owing to her pregnancy on the grounds of gender. The Adjudication Officer held that the Respondent had discriminatorily dismissed the Complainant on the ground of gender. She awarded the Complainant the sum of €30,000 in compensation.
The Complainant commenced employment with the company on 25th March 2015 as a Manager in their restaurant, Crabby Joe's, Howth. Her employment terminated on 15thJune 2015.
Summary of the Respondent’s Case
Mr John Barry, Management Support Services (Ireland) Limited, on behalf of the Respondent denied that the Complainant had been dismissed due to her pregnancy and submitted that she was dismissed for incompetence. He told the Court that the Complainant was employed on a six months probationary period. She had held herself out to be an experienced member of a management team within the restaurant industry. Yet, within a matter of two weeks of her commencement the Respondent had serious concerns about her suitability for the role.
Mr Barry submitted that there were ongoing problems with her work and despite being given time to improve, her performance did not change, thus making the Complainant’s continued employment impossible. Furthermore, he said that had the Respondent not taken this action, its business would have been severely damaged through loss of customers and loss of valuable employees who may well have left due to the aggravation they were experiencing because of the Complainant’s attitude to them.
He said that at the time the Complainant joined the company in March 2015, another Manager, Ms. Sara Gross, was already employed in the restaurant. When Ms. Gross joined, the business had suffered from poor management resulting in a serious decline in business. Ms. Gross was given the task of stopping the decline and rebuilding the business and future planning. As a consequence, she was working long hours to achieve these objectives. Therefore, the Complainant was employed as a Manager to work opposite Ms. Gross.Ms. Gross was the Senior Manager of the two on site and had been given the responsibility for overseeing the training and induction of the Complainant.
Mr Barry said that the Complainant came to the Respondent having had seven years’ experience in the catering industry, and had previously been a Manager in a restaurant, from which she received a reference indicating that she was a reliable, hardworking and valued member of their management team. The Complainant presented herself during the recruitment process as more than capable of handling the type of pressure that was associated with a busy restaurant.
He said that after a relatively short period of time Ms. Gross had concerns regarding the Complainant's abilities. She worked closely with the Complainant in the early days showing her the procedures and drafting documentation and manuals in order to assist the Complainant in understanding how the restaurant was operationally run.
Despite this training after a number of weeks of commencement of employment, Ms. Gross submitted an email to Mr. Sean McAuliffe, Director of Operations, on 6thApril 2015 which highlighted concerns that she had regarding the Complainant.
In particular, Ms. Gross expressed the view that she did not believe the Complainant was going to be suitable for the restaurant. In this regard Ms. Gross referred to the fact that she felt there was unwillingness on the part of the Complainant to follow instructions, she said that she left the restaurant in an untidy condition when closing the restaurant, she found the laundry had not been completed, bathrooms had not been cleaned and bins had not been taken out, amongst other things. These were all essential matters which needed to be addressed at close down so that the restaurant would be in a fit condition for the staff coming on duty the following day.
When spoken to about these issues, excuses were made by the Complainant that she was very busy and did not have the chance to get the work done, even though this was something that was essential and basic good practice, regardless of the type of restaurant, and was not something that required a need to be trained in if she were an experienced manager. Mr Gross stated that in her opinion the Complainant was not the right person to be in the management role.
By the end of April 2015, Mr Barry said that an additional problem arose with the Complainant regarding her completion of cash sheets which resulted in discrepancies not being identified in the cashing up and therefore not being traced properly.
Further problems arose with the restaurant staff, in particular with the setting of rosters, which the Complainant had responsibility for. Mr Barry said that this resulted in staff being frustrated and unhappy. He said that the Respondent was particularly unhappy with her handling of an absent member of staff whose father had rang in to inform the Respondent that she was unwell and would not be attending work. He said that she had handled the situation in a very unprofessional manner when she spoke to him in an abrasive manner.
It was not disputed that the Complainant notified the Respondent on 8thMay 2015 that she was pregnant. Mr Barry said that the Respondent was supportive of her and assured her of its support during her pregnancy.
Mr Barry referred to an incident which occurred on 13th May 2015 when it was noticed that a comment on Facebook complained about the rude service a customer had, when his bill was almost thrown at him. It was confirmed that it was the Complainant who served him. Mr Barry said that such actions could not be attributed to lack of training as they are basic management skills and would not be expected from someone who had been described in a reference as"valued member of their management team".
Mr Barry said that by this time Ms. Gross had a serious concern about the Complainant's performance and both she and the Operations Manager met with the Complainant to discuss how she could improve her performance. When things had not improved Ms Gross send an email to the Complainant on lst June 2015 outlining a number of issues with her performance. This referred to not keeping accurate records on the number of people being served meals which allows the company to calculate average spend, non-completion of closing sheets, again, leaving the place in an untidy condition, again, cash not being properly stored and alterations to staff rosters.
In response, the Complainant replied on the same day giving her reasons for the criticism raised. Mr Barry stated that it was then clear that the Complainant was spending too much time on the floor and not doing her job of making sure the service was run properly.He said that her response included the following statement:- "but it is probation time so if you feel that I am not the person Wrights of Howth are looking for let's just discuss with Sean and solve problem."
Mr Barry said that at this stage it became quite clear to Ms. Gross that the Complainant was not suitable for the position. A lot of hard work had been put in to rebuilding the business, which was now being undone and the restaurants' ratings were starting to decline, and as it was then coming into the start of the income earning season, the Respondent had to make a decision. Therefore, Ms. Gross met with Mr McAuliffe on 15thJune 2015 to discuss this matter and it was decided that they would not continue to employ her as it was not working out. Mr. McAuliffe then met with the Complainant and advised her that the company was satisfied that things were not working out and therefore her employment was terminated. Mr Barry said that the Complainant did not seem surprised and at no time did she make any suggestion neither that she was experiencing difficulties because of her pregnancy nor that she felt that she had been treated unfairly because of her pregnancy.
In addressing the legal position, Mr Barry submitted that the Complainant’s dismissal was grounded on exceptional circumstances unrelated to her pregnancy. He relied upon the case of R v Kelly  2 All ER 13 at 20 where Lord Bingham CJ. held :-
- “ the term "exceptional" is an ordinary familiar English adjective and not a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course or unusual or special or uncommon. To be exceptional a circumstance need not be unique or unprecedented or very rare; but it cannot be one which is regular or routinely or normally encountered"
Mr Barry contended that in this case taking account of the circumstances that were applicable, it became abundantly clear that they were "out of the ordinary course or unusual or special or uncommon". With reference to the Complainant’s reliance on Article 10 of Directive 92/85/EEC(the Pregnancy Directive) which provides a comprehensive legal framework in which special protection is afforded to the safety health and welfare of pregnant women in employment, Mr Barry said that the Respondent believes that there were circumstances that were exceptional in this case which were not based on the Complainant’s pregnancy.
He said that prior to the Respondent knowing that the Complainant was pregnant there had been concerns regarding her performance and meetings had been held with her to discuss how she should improve her performance. Despite these meetings there was no improvement in performance and these non-improvements were recorded by Ms. Gross to Mr McAuliffe.
Summary of the Complainant’s case
Mr Krystian Boino, Hoban Boino Solicitors, on behalf of the Complainant, submittedthat the Respondent discriminated against the Complainant on gender grounds contrary to the Acts. He submitted that it failed to provide objective reasons duly substantiate and unconnected to her pregnancy when she was dismissed.
Mr Boino submitted that the conduct of Respondent not only breached the Acts but also violated Article 10 of the Pregnancy Directive which protects a worker from the time that she becomes pregnant until the end of the maternity leave and prohibits dismissal unless duly substantiated grounds are provided in writing. The Respondent failed to give suchsubstantiated grounds and failed to give them in writing.
Mr Boino stated that the Complainant had extensive experience working as a Restaurant Manager. She received written terms and conditions of her employment with the Respondent on 25thMarch 2015 confirming her position as a Restaurant Manager, reporting to Mr Sean McAuliffe, General Manager. She was advised that she would be sharing the managing of the restaurant with another employee Ms Gross. Ms Gross shortly after commencement of the Complainant’s employment, reduced her working hours to around 35 hours per week and 8 of those hours were allocated to office work, therefore Ms Gross was normally leaving the restaurant when the Complainant was commencing her shift. Shortly after commencing, another senior employee with a supervisory role left the employment.
The Complainant was of the clear understanding taken from the interview with Mr McAuliffe that she was being hired in order to improve the management of the restaurant and to efficiently run the business in terms of staff, cost issues etc. However,Mr Boino said that this was very challenging and due to the lack of training she received the Complainant was constantly facing minor operational issues and difficulties related to staff. When she attempted to tackle an absenteeism problem with one employee she was told by Mr McAuliffe that she was complemented on her work.
Mr Boino said that the Complainant also faced problems with arranging staff rosters and their distribution viaWhatsAppplatform- a practice she inherited when she commenced employment with the Respondent. Lack of communication between managers caused problems with rosters being changed without her knowledge.
The complainant announced her pregnancy and produced a certificate confirming her pregnancy to Ms Gross on 8thMay 2015 and told her that her expected delivery date was 16th September 2015. Ms Gross congratulated her and informed her that the expected delivery date collided with her holiday plans to attend a wedding ceremony in the US and advised the Complainant that they must work on the roster.
Within two days Mr McAuliffe also learned of her pregnancy and congratulated her. The Complainant spoke to him and advised that she was aware she was only new in the job and she hoped she would be allowed to return next season after her maternity leave.
Mr Boino said that within the next few weeks the Complainant noted some disturbing changes in the workplace that firstly she had not linked to her pregnancy. She was not invited anymore to the managerial meetings taking place on a weekly basis. Then she received a long email from Ms Gross dated lst June 2015. The email refers to several issues around: vouchers, charging staff for drinks, rosters. The Complainant was surprised to see these issues being raised in an email instead of being addressed in a normal exchange of information between managers. These were issues which should have been clarified from the beginning of her employment and she was surprised to see Ms Gross refer to herself as a "senior restaurant manager".
Mr Boino said that in her replying email of the same date, after addressing the particular issues raised, the Complainant expressed her upset, offered to meet the following morning to discuss the issues and suggested a further meeting with Mr McAuliffe on his return from holidays. An informal meeting with Ms Gross took place the next morning. At the meeting, it was agreed that they would talk more often and exchange information and it was also agreed that they would meet with Mr McAuliffe at later stage.
Mr Boino said that considering the clear change of atmosphere in workplace after the notification of her pregnancy and the email she received from Ms Gross, the Complainant contacted Mr McAuliffe on 12th June 2015 and asked for a meeting to include Ms Gross and the Supervisor. In the email the Complainant stated that as managers they had in fact never had a chance to sit down and talk and it was now"really urgent".She stated that his assistance was now required as the situation was"too serious".Mr Boino said that the Complainant sent that email after she noted the General Manager had a meeting in the office with Sara to which she was not invited.
Mr Boino said that the Complainant was slightly taken aback when she received immediate response from Mr McAuliffe advising her that he needed an "agenda" for the meeting. The Complainant responded on 14thJune 2015 and suggested that whenever it suited him she and the Supervisor would share everything with him. The request was reiterated for an agenda again made by Mr McAuliffe on 14th June 2015 by email stating :"should you wish to meet with me, it is you who must set the agenda. This is how we do it. I suggest you speak to Sarah and explain to her that I never attend meetings without agenda.” The Complainant was quite shocked at this response. The meeting never took place.
Mr Boino said that on 15th June 2015 Mr McAuliffe came to the restaurant and called the Complainant to the office and advised her that he was letting her go. Mr Boino said that the Complainant was breathless and due to her complete shock she could only ask if that was a final decision and she remembered him saying "business is business Dorothy, enjoy your maternity". The conversation lasted for approximately two minutes. The Complainant went to the bar area and broke out into tears. The following day she received her P45 with date of cessation 16th June 2015.
Mr Boino said that prior to 15th June 2015 the Complainant had no notice of dismissal, she had not been subject to any disciplinary procedures, and there were no previous meetings or conversations suggesting a decision to dismiss her. She was not aware of emails exchanged between Ms Gross and Mr McAuliffe in April and May 2015 and none of the issues addressed in those emails were addressed in the email of 1stJune 2015 from Ms Gross to her. She had not been subject to any performance reviews. Therefore, Mr Boino submitted that the Respondent discriminated against the Complainant on the grounds of gender by dismissing her and dismissing her without any reason, explanation and notice.
In addressing the legal position, Mr Boino citedIntrium Justitia .v. Kerrie McGarveyEDA095 where this Court held that ill treatment of a pregnant employee raises aprima faciecase of discrimination on the gender ground. Therefore, he contended that the burden of proof shifts to the Respondent, who has failed to establish that the Complainant's dismissal was attributable to objective, non-discriminatory grounds. He further submitted that the close proximity of the discrimination to the Complainant's announcement of her pregnancy is a fact of sufficient consequence to discharge the Complainant's burden of proofRabbitte .v. EEC DirectDEC-E/2008/07.
Mr Boino submitted that the Respondent had breached Article 10 of the Pregnancy Directive by dismissing the Complainant without any reason during her pregnancy. He referred to Article 10 (2) of the Directive which requires an employer tocite duly substantiated grounds for her dismissal in writing,as held by theCJEU clearly inDanosa v LKB Lizings SIA CMLR 45.
Mr Boino stated that of particular note in this case are the observations made by the Labour Court in case EDA 128Trailer Care Holdings-v- Deborah Healyin relation to the manner the dismissal was conducted:-
- “The manner in which the dismissal was implementedisa serious aggregating factor in this case. The decision to dismiss the Complainant must have been in the contemplation of the Complainant for some time yet the Complainant was given no prior indication of what was to occur. She was informed of her dismissal some ten minutes before she was due to finish work and go on annual leave. She was merely informed of the decision and given no opportunity to make representations on her own behalf. In the Court’s view no reasonable employer, acting bona fide, would have behaved in such a manner.”
Witness Testimony - Mr Séan McAuliffe, General Manager & Operations Manager
Mr Seán McAuliffe told the Court that he had been involved in overseeing operations of the Respondent’s business at its various locations since 2008. He was involved in setting up Crabby Jo’s restaurant, which opened at Easter 2014. He said initially the business was not doing well. A manager was recruited to oversee improvements in the business and Mr Gross was recruited as an Assistant Manager in January 2015. When the manager left, Ms Gross took over the role. As the task was too demanding for one person it was decided to recruit a further manager. The Complainant was given that role at the end of March 2015. He said that the Complainant was on probation, as soon as she proved herself; he was prepared to give her more responsibilities.
Ms Gross was engaged in training the Complainant. He said that shortly after the Complainant commenced, Ms Gross raised some concerns about her performance and her ability to carry out the role effectively. These issues were raised in an email from her dated 6thApril 2015. Following which he said that he had a number of meetings with the Complainant about her performance. He was accompanied by Ms Gross at these meetings. He said that at these meetings the Complainant offer to resign her post if the Respondent was not happy with her work. However, he assured her that he wanted her to improve. He said this demonstrated that she was fully aware of her shortcomings; however, he said that it would not be good for business to have a manager leave.
In respect of the email of 1stJune 2015 from the Complainant seeking an urgent meeting with him, Mr McAuliffe said that as the Complainant wished to have a meeting involving two other members of staff, he wanted to know the agenda beforehand.
With regard to the decision to dismiss, he said that it had got to the point where the issues with the Complainant were never going to be rectified. He said that he had a discussion with Ms Gross about it and he informed one of the owners that he was going to dismiss the Complainant. He accepted that he smiled at her and asked her to come to the office, which was his natural demeanour and he wanted to show some compassion. He said that the reason he dismissed the Complainant was to ensure that the business did not deteriorate again. He said that he was concerned about staff morale, which he felt was being damaged by her approach to staff. In reference to the instance where he had complemented her on taking action against an employee with absenteeism problems, he said that he later discovered more facts about the case and decided that she had handled the situation inappropriately. He said that these issues combined with her failure to carry out duties as instructed led him to dismiss the Complainant.
In cross-examination, the witness confirmed that he had not sought references for the Complainant before employing her and had not checked with her previous employers, contrary to the Respondent’s conditions of employment. He accepted that while the contract of employment stated that the Complainant would report to him, in reality she was expected to report to Ms Gross, as he was not in the restaurant on a daily basis.
He said that on two occasions the Complainant offered her resignation, however, he said that he did not view them as a formal resignation, more of a comment.
When questioned why he did not meet the Complainant further to her request for a meeting, he said that as she wished to involve two others in the meeting he wanted to know in advance what the meeting was about. Furthermore, he said he was on holidays at this time.
Similarly when questioned why he did not have a meeting with her prior to making a decision to dismiss her, he said that there had been previous discussions with her about her performance and she was aware of the problems.
He said that when he informed her that she was dismissed, he told her she was being given one week’s pay in lieu of notice.
In answer to questions from the Court, Mr McAuliffe said that he had not issued the Complainant with a letter in writing informing her that a disciplinary meeting would be held on 15thJune 2015 or that her employment was in jeopardy. She was not afforded an opportunity to have representation at that meeting. He said that the meeting was short, approximately two minutes, he told her the reasons he was terminating her employment, she asked if that was final decision and he told her it was.
He said that he dismissed her because no matter what he and Ms Gross did to try and improve matters, there was no change in the Complainant’s performance, it was coming into their high season, and the Respondent could not continue with problems. He said that the main reason for her dismissal was due to the deteriorating business conditions and as he was potentially about to lose Ms Gross and other members of the team, due to the Complainant’s behaviour.
He told the Court that he had not sought legal advice before terminating her employment. He arranged for the Complainant’s P45 to be issued to her along with any outstanding annual leave payment.
Witness Testimony - Ms Sara Gross, Senior Restaurant Manager
Ms Sara Gross joined the Respondent in January 2015. Prior to joining she had had fifteen years in the catering business. Another manager had started in December 2014, however, she left in February 2015. At the time the business was poorly organised, reviews were not good, there was a lack of structure in the place and a high turnover of staff. She said that when the Complainant was recruited as a manager at the end of March 2015 she had responsibility for the day to day running of the business and they both reported to Mr McAuliffe.
With regard to the Complainant, Ms Gross said that she was responsible for her training and dealing with disciplinary issues. She said that they both worked equally on running the business. However, she said that from the start there were issues with the Complainant’s performance, there was tension in the restaurant, she had an abrasive attitude towards staff and this was having a negative impact on staff. Following the email she sent to Mr McAuliffe on 6thApril 2015 concerning the Complainant’s performance, which she had copied to the owner, the owner came back to her to say it was her call. She said that she discussed the matter with Mr McAuliffe and they decided to keep her on and continue with her training.
With reference to that email the witness said that as this was early days in the Complainants career in the restaurant she continued to work with her to help her improve. She said that she spoke to the Complainant on a number of occasions regarding the difficulties she encountered with her work. She said that on at least two of these occasions, the Complainant said that if the company was not happy with her work that she would resign. However, Ms Gross said that in accordance with the Respondent’s wishes, her objective was to assist the Complainant to improve her performance. She had assured the Complainant of that objective. Ms Gross said that by mid-April 2015 matters got worse, there was confusion with staff rosters and customers were unhappy. She said that she tried to communicate with the Complainant during their 20 mins changeover in shift, but it was very difficult to get the message across to the Complainant. Ms Gross said that it got to a point where she began to consider her own options for the future.
Ms Gross said that when the Complainant told her she was pregnant on 8thMay 2015 she assured her that the Respondent would be flexible with her regarding her working hours and that she should not lift heavy boxes. She said that she regularly sat down with the Complainant to make sure she was okay, that she did not need to adjust her hours and such like. Ms Gross said that during these conversations the Complainant always said that she was fine and in fact said that she felt really well and did not need any additional support.
The witness told the Court that the Complainant’s performance continued to deteriorate, she was receiving constant complaints from staff about the Complainant and most of these complaints came when she was off duty. She said that these difficulties arose due to the Complainant constantly changing the rotas. Therefore, on 1stJune 2015, she decided to write an email to the Complainant outlining the specific difficulties she was encountering with her. She said that in the Complainant’s responding email of that same date, the Complainant did not take ownership of the problems; she made excuses and was not prepared to take instruction. The witness said that she was not aware that the Complainant had sought a meeting with Mr McAuliffe but when the Complainant mentioned it to her, Ms Gross said that if Mr McAuliffe wants a meeting then there must be an agenda.
In cross-examination, Ms Gross was asked if she herself was on probation during the material time surrounding these events. She accepted that as six months was the standard contract then yes she was. She was questioned whether the business had improved from its deteriorated state by March 2015, when the Complainant commenced employment. She said that there had been a significant improvement in the business by then, however, when the Complainant commenced the business began to deteriorate again.
Around early/mid-April, Ms Gross said that she reduced her own hours for family reasons and no longer worked at weekends. In answer to questions about the reasons for writing the 1stJune 2015 email, she said that she was at breaking point and was considering her future with the Respondent as she was becoming continually frustrated with the Complainant's performance.
Ms Gross was asked if she was surprised that a meeting had been requested by the Complainant with Mr McAuliffe on 12thand again on 14thJune 2015, and yet the Complainant was dismissed the following day. She said she was not. She denied that the Complainant was excluded from meetings after 8thMay 2015. She said that there were regular meeting between the Complainant, Mr McAuliffe and herself. However, she admitted that she herself would have more regular meetings with Mr McAuliffe dealing with sensitive financial matters at which the Complainant was not required to attend as she was still on probation.
Ms Gross was asked about the meeting she had with the Complainant on 2ndJune 2015, the morning following the exchange of emails which had occurred the previous day. Ms Gross said that it was a constructive meeting, where it was agreed that they would jointly work on certain issues together, they agreed to meet on a formal basis more often and agreed to frequently exchange information.
When questioned whether or not she mentioned the above meeting with Mr McAuliffe when she met him the following day, she replied that she could not recall, however, she did tell him that in her opinion the Complainant was not working out and should be dismissed.
Witness Testimony - Ms Alice Kozak
Ms Alice Kozak gave evidence to the Court on behalf of the Respondent. She said that she commenced employment as a waitress with the Respondent on 22nd May 2014, around the time the restaurant opened. She said that at the time she joined the restaurant, Ms R was the manager. Ms R was a very efficient manager who along with Ms Gross helped to establish the business. However the business declined.
She said that when the Complainant joined the business she left the restaurant in a bad condition at closing times. She complained about this to Ms Gross. She also complained about her hours being cut by the Complainant and her change of roster. The witness was asked if she threatened to leave the Respondent as a result and she said that she did and added that other staff were threatening to do likewise.
Witness Testimony - Mr Steven Ray
Mr Steven Raygave evidence to the Court on behalf of the Respondent. He said that he commenced employment as a waiter/barman with the Respondent on 15th May 2014, when the restaurant opened. He said that after the Complainant commenced working as a manager he found that the restaurant was badly organised. He said that there were customer complaints, a decrease in tips and roster changes that he did not know about. He complained about these matters to Ms Gross. He told the court that he considered leaving the employment as his hours were dropping from the time the Complainant started.
Witness Testimony - The Complainant
The Complainant gave details of her working experience, she had almost seven years’ experience in the catering industry and had been a Restaurant Manager for 2½ years prior to joining the Respondent on 25th March 2015. She said that when interviewed for the position with the Respondent she was informed that management were anxious to build a strong team to manage the restaurant as it needed to significantly improve its business.
The Complainant said that her induction/training took place over two days where she was essentially shadowing Ms Gross. On the third day she was left to manage the restaurant with no support. She said that as the restaurant was so busy she never got the chance to sit down with Ms Gross to discuss issues.
The Complainant said that she was not made aware of the email from Ms Gross dated 6thApril 2015 and that there had been no meetings with management between the date of that email and 1stJune 2015 when Ms Gross sent the second email. She said that the first time she became aware of any difficulties with her performance was on 1stJune 2015 when she received the email from Ms Gross. Prior to that date the only feedback she had received from Mr McAuliffe was positive when he said “well done” after she emailed him a copy of a draft letter to an employee where she planned to initiate disciplinary proceedings against the employee for consistent absenteeism.
She said that after she announced her pregnancy that Ms Gross congratulated her and was very supportive of her, however, she felt that the atmosphere had changed and she was not included in meetings between Mr McAuliffe and Ms Gross after that.
The Complainant was asked if she offered to resign her position, she replied that she did not and that she was putting her heart into the job. She said that on 12thJune 2015 she decided to seek a meeting with Mr McAuliffe as she was under the impression that Ms Gross was not satisfied with her and she wanted an opportunity to explain her side. However, on 15thJune Mr McAuliffe came to the restaurant and told her that he was letting her go. She said that this came as a shock to her, she was not expecting it, he said “business is business, enjoy your pregnancy” and did not let her speak. She said that the meeting lasted no more than 2 minutes and she received her P45 the next day.
In cross-examination she said that she did not complain to Mr McAuliffe about the lack of training but that she was never told that she was not doing her job properly. With reference to her cutting staff hours which led to complaints, the Complainant said that she had been instructed by management to reduce costs.
In terms of the meeting she sought with Mr McAuliffe, the Complainant said that she did not specify the reasons for the meeting as she wished to tell him in person. She said that she feared that Ms Gross and Mr McAuliffe were discussing her performance behind her back and she wanted the opportunity to discuss matters in an open manner.
In a line of authorities starting with the decision in C-177/88,Dekker v Stichting Vormingcentrum voor Junge Volwassenen 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. The issues arising for decision 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 her competence. In advancing the Complainant’s case Mr Boino relied on the well-known CJEU (formally the ECJ) case C-177/88,Dekker v Stichting Vormingcentrum voor Junge Volwassenen ECR 1-3841 to the effect that dismissal on grounds of pregnancy constitutes discrimination on grounds of gender which cannot be justified. The CJEU 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.
It is the Respondents’ case that the decision to dismiss the Complainant was wholly on grounds of her incompetence and was unrelated to the fact that she was pregnant.
The Court has carefully evaluated all of the testimony proffered in the case has also taken account of the documents put in evidence.
Discussion and Conclusions
It is clear fromDekkerand from all of the jurisprudence in this area that the dismissal of a pregnant woman is sufficient to raise an inference of discrimination on grounds of gender.
Since the decision inDekkerthe protection afforded to pregnant women in employment has been strengthened considerably in the case law of the CJEU and in the legislative provisions of the European Union. Equality on grounds of gender is now expressly guaranteed by Article 23 of the Charter of Fundamental Rights of the European Union. Article 33.2 of that Charter also incorporates the prohibition of dismissal on grounds of pregnancy established in jurisprudence of the CJEU. It provides: -
- To reconcile family and professional life, everyone shall have the right to protection from dismissal for a reason connected with maternity and the right to paid maternity leave and to parental leave following the birth or adoption of a child.
The Charter is now incorporated in the Treaty on the Functioning of the European Union (the Lisbon Treaty) and has the same legal standing as all preceding and current Treaties. It can thus be properly regarded as part of the primary legislation of the European Union.
The jurisprudential principle that discrimination on grounds of pregnancy constitutes direct discrimination on grounds of sex is now codified in Directive 2006/54/EC on the Principle of Equal Treatment of Men and Women (the Recast Directive). This Directive provides, at Article 2. 2 (c), that any less favourable treatment of a woman related to pregnancy or maternity leave within the meaning of Directive 92/85/EEC constitutes unlawful discrimination for the purpose of that Directive.
Directive 92/85/EEC (the Pregnancy Directive) provides a comprehensive legal framework in which special protection is afforded to the safety health and welfare of pregnant women in employment. Article 10 of the Directive is of particular and far reaching significance. It provides: -
- In order to guarantee workers, within the meaning of Article 2, the exercise of their health and safety protection rights as recognised 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.
The underlying rationale for the prohibition of dismissal on grounds of pregnancy is discernible from recital 15 of the Directive which provides: -
- “Whereas the risk of dismissal for reasons associated with their condition may have harmful effects on the physical and mental state of pregnant workers, workers who have recently given birth or who are breastfeeding; provision should be made for such dismissal to be prohibited”
The importance of this latter provision, in deciding cases within the ambit of the Equal Treatment Directive, has been emphasised by the CJEU on a number of occasions. Most recently in case C-232/09Danosa v LKB Lizings SIA CMLR 45, at 60, the Court said: -
- “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 Court then continued at par 61 of the report: -
- “During that period, Article 10 of Directive 92/85 does not provide for any exception to, or derogation from, the prohibition on dismissing pregnant workers, save in exceptional cases not connected with their condition, provided that the employer gives substantiated grounds for the dismissal in writing”
These cases and the legislative provision of the European Union make it clear that pregnant women are to be afforded special protection from adverse treatment, and in particular from dismissal. Equally it is clear that where a pregnant woman is dismissed the employer bears the burden of proving, on cogent and credible evidence, that the dismissal was in no sense whatsoever related to her pregnancy.
Burden of Proof
Section 85A of the Act now provides for the allocation of the probative burden as between the Complainant and the Respondent in cases coming with its ambit. This section provides, in effect, that the Complainant bears the initial burden of proving facts from which discrimination may be inferred. If those facts are established, and if they are regarded by the Court as of sufficient significance to raise an inference of discrimination, the onus passes to the Respondent to show that the principle of equal treatment was not infringed in relation to the Complainant.
Where the probative burden shifts the Respondent must show a complete dissonance between the discriminatory ground relied upon and the impugned conduct or omission. Thus, inWong v Igen Limited IRLR 258 (a decision of the Court of Appeal for England and Wales), Peter Gibson LJ pointed out that where the Respondent fails to show that the discriminatory ground was anything other than a trivial influence in the impugned decision the complaint will be made out.
As was pointed out by this Court in Determination EDA0821,Kieran McCarthy v Cork City Council, at the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the facts proved. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.
For reasons already mentioned in this Determination, the special protection afforded to pregnant woman against dismissal in European law requires that where a pregnant woman is dismissed the employer must bear the burden of proving that the dismissal was grounded on exceptional circumstances unrelated to pregnancy or maternity. Hence, in every case in which pregnancy related dismissal is in issue, the factual combination of the dismissal and the woman’s pregnancy must, in and of itself, place the onus of proving the absence of discrimination firmly on the Respondent.
The Court is satisfied that it is clear from the evidence that the Complainant joined the Respondent at a time when the business was facing many challenges. A well-respected and efficient Restaurant Manager who was tackling those challenges had left. A Supervisor also left around this time. Two new managers were taken on to improve and develop the business, one in January 2015 and the other (the Complainant) only two months later. From the evidence given it is clear to the Court that the Complainant was given insufficient instructions/induction and was essentially expected to run the business without support from the start. When she sought to deal with a consistent absentee problem, she was initially given support and later critised for her handling of the situation. It would appear that there was no mechanism to give her feedback; little or no communication/support from her superiors; there was no opportunity for her to seek guidance or to agree approaches towards improving the business. In reality the person she was told she would be working in conjunction with, who was also on probation, became her superior. When the Complainant sought to address the matter, she was not afforded an opportunity to do so and was dismissed.
In her testimony the Complainant stated that she was not aware of the emails exchanged between Ms Gross and Mr McAuliffe in April 2015 and that none of the issues addressed in that email were addressed in the email of 1stJune 2015 from Ms Gross to her. She had not been subject to any performance reviews. Therefore, on the evidence of the Complainant there had been no issues raised with her regarding her performance prior to her notifying the Respondent of her pregnancy on 8thMay 2015 and she had not been subjected to any disciplinary procedures.
While a discriminatory taint is not the only inference which can be drawn from that confluence of facts, it is within the range of inferences that can reasonably be drawn. In these circumstances the Court is satisfied that the Complainant has established facts which are of sufficient significance to place the probative burden of showing an absence of discrimination on the Respondent.
The onus which the Respondent bears is to prove that there was no discrimination whatsoever in the impugned decision. The standard of proof is the normal civil standard of the balance of probabilities. InMiller v Minister for Pensions 2 All ER 372 Denning J (as he then was) explained in relation to that standard: -
- “If the evidence is such that the tribunal can say: ‘we think it more probable than not’ the burden is discharged, but if the probabilities are equal is not”
As the Court has found in similar circumstances inTrailer Care Holdings LimitedDetermination EDA128 no reasonable employer, actingbona fide, would have behaved in such a manner. Furthermore, the Court notes that no substantiated grounds for the dismissal were given by the Respondent in writing, contrary to Article 10 of the Directive.
On balance, the Court has come to the view that the Complainant’s dismissal was tainted with discrimination, therefore the Respondent has failed to discharge the burden of proof. Accordingly the Complainant is entitled to succeed.
For all of the reasons set out herein the Court has concluded that the Complainant’s dismissal was tainted with discrimination. The Court measures the quantum of compensation which is appropriate in the circumstances at €15,000. That award is for the effects of discrimination and is not in the nature of remuneration. The Respondent is ordered to pay the Complainant compensation in that amount.
The decision of the Adjudication Officer is varied accordingly.
The Court so Determines.
Signed on behalf of the Labour Court
26 October 2017Deputy Chairman
Enquiries concerning this Determination should be addressed to Louise Shally, Court Secretary.