ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00047278
Easy Meals Limited
Mr. Seamus Collins BL instructed by Sean Ormonde & Co. Solicitors
Complaint Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994
Date of Adjudication Hearing: 13/10/2022 & 23/03/2023 & 28/03/2023
Workplace Relations Commission Adjudication Officer: Lefre de Burgh
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Acts, 1998 – 2015, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints. All evidence was given under oath or affirmation and the parties were given an opportunity to cross-examine.
This case is linked to ADJ-00033534. There was extensive preliminary argument as to who was the correct legal Respondent and whether the correct legal Respondent was on notice of the proceedings. This matter was raised, for the first time, at the hearing on 23/03/2023.
The Adjudication Officer, at the hearing, on 28/03/2023, acceded to the application, made on behalf of the Complainant to adjoin a second Respondent, Easy Meals Ltd. (ADJ-00047278) to the proceedings. The other Respondent to the proceedings listed is Mr. Claudio Malizia (as per ADJ-00033534). I have determined, and it is set out in my decision of ADJ-00033534, that Mr. Malizia is not the correct legal Respondent to these proceedings brought by the Complainant, Ms. Stacey Barrett.
This case was listed for hearing on three separate occasions:
1. On 13/10/2022, at the hearing, a postponement was granted on the basis of “substantial reasons or exceptional circumstances” as per Process 2 of the Workplace Relations Commission’s Guidelines on Postponements as the Solicitor for Mr. Claudio Malizia was ill. Supporting documentation - a medical cert. - was provided. The Complainant and her representative attended on the morning of the hearing.
2. On the second occasion (Thursday, 23/03/2023), Mr. Gaffney, Solicitor for Mr. Claudio Malizia, attended but his client did not. An application for a postponement was made, which was resisted by the representative for the Complainant. A very short postponement was granted by the Adjudication Officer at the hearing on the basis of “substantial reasons or exceptional circumstances” as per Process 2 of the Workplace Relations Commission’s Guidelines on Postponements. An undertaking to provide supporting documentation was given, and subsequently submitted.
The Complainant and her representatives attended on both occasions. Mindful that this was an Employment Equality case (in terms of the Respondent employer’s attendance) and that the Complainant had now attended twice, along with her representatives, in circumstances where applications for postponements were made and granted, the Adjudication Officer granted a very short postponement only and reconvened the hearing the following Tuesday, 28/03/2023, for the third time. On 23/03/2023, it was stated by his Solicitor that Mr. Claudio Malizia would be in attendance on the next occasion (28/03/2023).
In the interim, on Sunday 26/03/2023, a written submission was made by Mr. Malizia’s Solicitor submitting that Mr. Claudio Malizia was not the correct legal respondent.
3. A hearing was convened on 28/03/2023. The representative for the Respondent appeared. Mr. Claudio Malizia did not appear. Ms. Samantha Cleary, Mr. Malizia’s wife (and business partner), entered an appearance on his behalf, and was in a position to give the Solicitor for the Respondent instructions, i.e. no further postponement was being sought. In response to an enquiry by the Adjudication Officer, it was clarified that Ms. Samantha Cleary was solely in attendance in her capacity on behalf of Mr. Claudio Malizia and not in attendance in any capacity on behalf of Easy Meals Ltd.
Mr. Gaffney, Solicitor, further clarified that he was on record for Mr. Claudio Malizia only and had no instructions from, and was not on record for, Easy Meals Ltd.
The Respondent, Mr. Claudio Malizia, through his Solicitor, ran a wholly technical defence to the proceedings, i.e. that he was not the correct legal respondent to the proceedings. I have addressed that in my decision in ADJ-00033534.
[Adjudication Officer’s Note: At the time of the hearing, Easy Meals Ltd. has two shareholders (owners) and two directors, Mr Claudio Malizia and his wife Ms. Samantha Cleary. The allegations made by the Complainant in relation to discriminatory treatment on the basis of pregnancy are levelled against Ms. Samantha Cleary who the Complainant identifies as her line manager and the allegation in relation to discriminatory dismissal is levelled against both Mr. Claudio Malizia and Ms. Samantha Cleary. I am satisfied that Easy Meals Ltd. was properly on notice of the hearing.]
Application to adjoin Easy Meals Ltd. as a Respondent
On foot of Mr. Gaffney’s written submission of 26/03/2023 setting out that Mr. Claudio Malizia was not the correct legal Respondent and his submission that he was the only Respondent against whom proceedings had been issued, and the statute of limitations had now run in respect of the filing of any other complaint, Mr. Seamus Collins BL, at the hearing on 28/03/2023, on behalf of the Complainant, sought to have the proceedings amended to adjoin Easy Meals Ltd. as a Respondent, which he submitted caused no prejudice to Easy Meals Ltd. He set out that the company, which is an incorporated entity, comprised of two people - Mr. Claudio Malizia (Director & Secretary) and Ms. Samantha Cleary (Director); and that both persons are owners. He submitted that the relevant test for the Adjudication Officer to consider was ‘prejudice’, not ‘inadvertence’ or ‘advertence’ (as suggested by Mr. Gaffney, Solicitor) – he submitted that ‘inadvertence’ is the language of the Organisation of Working Time Act, that it is not the language of the Employment Equality Act. He submitted that the correct test in relation to the Employment Equality Act is ‘prejudice’ and he submitted that there was no prejudice to Easy Meals Ltd.
Mr. Seamus Collins BL further submitted that the pre-ponderance of recent authority is very much skewed towards acceding to his application to adjoin Easy Meals Ltd. as a Respondent. In support of his position, he cited the WRC cases of James Jackson V. An Post – ADJ-00033366 dating from 18/01/2023,and Mohammad V TikTok Technology Ltd. - ADJ-00029100
He submitted that the complaint form is a non-statutory form which is intended to convey the nature of the complaint and against whom the complaint is made. He submitted that Mr. Claudio Malizia is the owner of the takeaway and that he was fully aware of the proceedings against it since May 2021; and that he was certainly aware since December 2021 (with the lodging of the Complainant’s submission) of the nature of the claim. He further cited the Labour Court case of Ballarat Clothing V Ann Aziz – EDAD 151, in which the Complainant had named the two directors personally rather than the company itself. He submitted that the Labour Court focused on what prejudice would accrue. He submitted that the height of the Respondent’s case can only be, that the Complainant had the benefit of legal representation, and that the Statute of Limitations had expired, before the lodging of the application to adjoin Easy Meals Ltd. He submitted that no new claim is being introduced, that no unfairness is being introduced. He submitted that rather significantly, ‘we didn’t hear a word about any such preliminary objection until March 23rd, 2023’, and he invited the Adjudication Officer to draw inferences from that. He submitted that ‘what we have here is a case of total complicity’ and that there is absolutely no prejudice accruing to Easy Meals Ltd. There was a different firm of Solicitors on record for the Respondent prior to Gaffney Solicitors being instructed and coming on record for Mr. Malizia, and there was correspondence between that previous Solicitor and the Solicitor for the Complainant, copies of which were contained in the Complainant’s booklet of documents. Mr. Seamus Collins BL submitted that, reading the correspondence, it was reasonable to conclude that jurisdiction had been accepted, but for clarity and completeness, he was seeking to adjoin Easy Meals Ltd. as a Respondent to the proceedings.
Mr. Gaffney, Solicitor on behalf of Mr. Claudio Malizia, resisted the adjoining of Easy Meals Ltd. and submitted that while the representative for the Complainant raised the issue of ‘prejudice’, he omitted the issue of ‘inadvertence.’ In support of his submission, he cited the WRC case of An Office Administrator V. Regional Newspaper – ADJ-00021698, a case dating from August 2021 in which the person was legally represented. It was deemed by the Adjudication Officer that she had no jurisdiction. He further cited the WRC case of Nicola McDonnell V. Irish Whiskey Museum Ltd. - ADJ-00035898, also dating from 2021.
Mr. Gaffney submitted that inadvertence has to be examined first, and only then if it is found that there was inadvertence, can it be considered as to whether or not there is prejudice. He cited the majority determination of the Employment Appeals Tribunal in Jeevanhan Al Tambraga v Orna Morrissey and Killarney Avenue Hotel (UD36/2011) where the Tribunal considered its powers under Section 39(4)(b) of the Organisation of Working Time Act 1997. He submitted that inadvertence should first be established; then, if established, it has to be examined as to whether that inadvertence (if remedied) would result in an injustice. He pointed to the Complainant’s submission and submitted that no inadvertence had occurred, and also pointed to the fact that the Complainant was legally represented. Therefore, he submitted the issue of prejudice did not arise. He submitted that proceedings had only been filed against one Respondent, Mr. Claudio Malizia, and that he was not the correct legal Respondent to these proceedings, and that the statute of limitations had since run.
The Complainant worked for the Respondent business, which is a takeaway food business, located in Millstreet, Co. Cork, from 21/08/2020 to 19/02/2021, in a part-time capacity. The Complainant submits that she became pregnant, notified her employer of her pregnancy, suffered severe pregnancy related illness, and was dismissed while pregnant as a result of matters relating to her pregnancy, which she submits constitutes a discriminatory dismissal on the grounds of gender and family status, contrary to the provisions of the Employment Equality Acts.
She further submits that she never received a contract of employment from her employer, which she submits is in breach of the Terms of Employment (Information) Act.
Summary of Complainant’s Case:
As per the Complainant’s written submissions:
The following complaints are before the Adjudicator of the WRC:
1. The Complainant's complaints pursuant to section 77 of the Employment Equality Acts, 1998–2015, that the Respondent discriminated against her on the basis of her gender and family status in dismissing her for discriminatory reasons. The Complainant was dismissed on 19th February 2021. [A further complaint in relation to the failure to provide reasonable accommodations in respect of disability was withdrawn prior to the hearing.]
2. The Complainant’s complaint pursuant to section 3 of the Terms of Employment (Information) Act, 1994, that the Respondent failed to notify the Complainant in writing of her terms and conditions of employment within the required time period, and specifically that the Complainant was never provided with a copy of her Terms and Conditions of Employment pursuant to this Act.
The Complainant began her employment with the Respondent on or about 21st August 2020. The Complainant was the only employee of the Respondent at the time who was not related to the Respondent’s Mr. Malizia. Mr Malizia, Ms. Cleary (his wife) and the Respondent’s nephew are all employees of the Respondent.
The Complainant submits that she typically received her hours by text message from Ms. Cleary of the Respondent. (Screenshots of text messages from Ms. Cleary to the Complainant enclosing hours of work for coming weeks were submitted.)
The Complainant submits that she notified the Respondent on 30th January 2021 of her pregnancy. She submits that she provided a copy of her sick certificate, at that time.
On 1st February 2021, the Complainant submits that she was admitted to hospital, where she was diagnosed as suffering from hyperemesis gravidarum which is the medical term for severe nausea and vomiting during pregnancy. Severe complications can arise from this, including extreme dehydration, vomiting, dizziness and more. The Complainant was suffering from all of these symptoms, and sometimes vomited in work.
The Complainant submits that when she returned to work, she undertook her job as best as she could. The Complainant submits that the Respondent was aware of the difficulties the pregnancy was causing her. She submits that when she endeavoured to discuss the difficulties, she was having in work, the Respondent told her she was “Pregnant, not disabled” and expected her to continue to do her work as normal. The Complainant submits that she often vomited during her shift. The Complainant worked until 9pm on midweek shifts. The Complainant submits that if she missed time, because of her illness during her shift, the Complainant was then forced to work until 10pm, sometimes 11pm, by her employer.
The Complainant submits that she continued to work for ten days from 2nd February 2021. The Complainant submits that she was ill throughout this time and that the Respondent was aware of this or ought to have been aware of it.
The Complainant submits that on 12th February 2021, she was ill and that she contacted Ms. Cleary of the Respondent and advised that she would not be able to attend work. (A copy of screenshots of text messages between the Complainant and Ms. Cleary were submitted.)
On 13th February 2021, the Complainant submits that she was removed from the work roster until week ending 17th February 2021. The Complainant submits that she asked the Respondent why this was the case, but she was told to “just be quiet.”
On 18th February 2021, the Complainant submits that she attended her doctor and her doctor certified her as unfit for work. The Complainant submits that she texted the Respondent the following day and advised that she would not be able to attend work. The Complainant submits that the Respondent did not reply to this text message but instead emailed her. That email dated 19th February 2021, summarily dismissed the Complainant, stating as follows:
Unfortunately we have to let you go
You have not been yourself the last few weeks,
When you are at work it is like that you are not here,
Not turning up to work on your days and letting me down and stuck for someone to cover you,
I’ve got a business to look after and can’t be left stuck,
After our talk nothing had changed.
All the best in your pregnancy
Claudio and Samantha”
(A copy of a Screenshot of the email dated 19th February 2021, to the Complainant, submitted.)
The Complainant submits that she responded to the Respondent the same day and stated:
“Hi Samantha and Claudio
I think that’s really unfair. I have done my best considering how sick I have been and have a right to take sick days. I understand that it is difficult for you with a lack of staff but the responsibility to find cover does not fall on me. I have spoken to citizens advice and have been advise to report you to the workplace relations committee on the basis of gender discrimination and I have contacted my Solicitor.”
(A copy of the responding email, dated 19th February 2021, from the Complainant to the Respondent submitted.)
The Complainant submits that on 8th March, Ms. Cleary messaged the Complainant stating that her wages were available to be collected. (A copy of the screenshot of the text message from Ms. Cleary to the Complainant was submitted.)
Discrimination: The Complainant’s complaint is that she was discriminated against by the Respondent on the grounds of her gender and family status. The Complainant submits that it is clear from the above email that the Complainant was treated differently and less favourably as a direct result of her pregnancy. She submits that a comparator is not required pursuant to the Employment Equality Acts and relevant European Union law. The Complainant maintains that her being removed from the roster, overall bad treatment and summary dismissal by email dated 19th February 2021 is a direct act of discrimination as a result of her gender and family status.
Terms of Employment: The Complainant submits that she was never provided with a Contract of Employment. She submits that her Solicitor carried out a Data Subject Access Request ‘DSAR’ on behalf of the Complainant by letter dated 7th July 2021. No documentation of any type relating to the Complainant’s Terms and Conditions of Employment were returned. (Copy of DSAR supplied by the Respondent submitted.)
Discrimination under the Employment Equality Acts
Direct discrimination arises where the less favourable treatment is based on a criterion which is necessarily linked to a characteristic indissociable from the discriminatory ground (Case C – 79/99 Schorbus).
In order to establish direct discrimination, it is necessary to prove that, but for the fact that the Complainant falls within one of the discriminatory grounds, she would have been treated differently. As such, it is necessary to identify an actual or hypothetical comparator, in a comparable situation who is, has, or would be treated differently. This has been addressed above.
The Complainant must discharge the burden of proof by showing that the difference in treatment is due to discrimination on one of the discriminatory grounds. Once the Claimant has made a prima facie case the burden of proof shifts to the Respondent. The rule is required pursuant to EU law and its rationale was explained in Ntoko v Citibank  ELR 116:
“This approach is based on the empiricism that a person who discriminates unlawfully will rarely do so overtly and will not leave evidence of the discrimination within the claimant’s power of procurement. Hence, the normal rules of evidence must be adapted in such cases so as to avoid the protection of anti-discrimination laws being rendered nugatory by obliging claimants to prove something which is beyond their reach and which may only be in the respondent’s capacity of proof.”
In Dublin Corporation v. Gibney’s EE5/1986, a prima facie case was defined 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.”
The burden of proof which must be satisfied by the Complainant was summarised in Minaguchi v. Wineport Lakeshore Restaurant as follows: “It appears to me that the three key elements which need to be established by a claimant to show that a prima facie case exists are:
(i) that she is covered by the relevant discriminatory ground(s)
(ii) that she has been subjected to specific treatment and
(iii) that this treatment is less favourable than the way someone who is not covered by the relevant discriminatory ground is, has been or would be treated.”
Gender and Family Status Discrimination
Irish gender equality law has its roots in EU gender equality law. Pursuant to Article 141 of the EU Treaty, Member States are required to ensure men and women receive equal pay for equal work. Further, in the case of Defrenne (No 2) v. Sabena Airlines  ECR 455, the ECJ held that Article 141 enjoys direct effect in Member States and, as such, is directly enforceable.
It is well established that discrimination based on pregnancy comes within the remit of gender based discrimination. In the seminal case of Dekker v. Stichting Vormingscentru voor Jonge Volwassen (VJV-Centrum) C177/88  EUECJ R177/88, the ECJ held that discrimination on the ground of pregnancy was direct discrimination and not indirect discrimination. In upholding the Complainant’s complaint that the Respondent had breached the Equal Treatment Directive for refusing to hire the Complainant as she was pregnant, the ECJ stated:
“It should be observed that only women can be refused employment on grounds of pregnancy and such refusal therefore constitutes direct discrimination on grounds of sex. A refusal of employment on account of the financial consequences of absence due to pregnancy must be regarded as based, essentially, on the fact of pregnancy. Such discrimination cannot be justified on grounds relating to the financial loss which an employer who appointed a pregnant woman would suffer for the duration of maternity leave.”
Importantly, Dekkerconfirms that discriminatory acts relating to pregnancy are directly discriminatory on the gender ground and that pregnancy cannot be compared to either sickness in a man or a non-pregnant woman. Indeed, the Court found that since pregnancy is a uniquely female condition, where a woman experiences unfavourable treatment on grounds of pregnancy, such treatment constitutes direct discrimination on the grounds of gender within the meaning of the Equal Treatment Directive, even though there is no male comparator.
Consequently, discrimination on grounds related to pregnancy is now a form of direct gender discrimination. The Dekker decision is reflected in section 4(b) of the Equality Act 2004 which provides:
“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 or would be treated.”
Importantly, EU Directive 2002/73/EC as amended, which addresses the issue of woman returning to work following a period of maternity leave, states:
“A woman on maternity leave shall be entitled, after the end of her period of maternity leave, to return to her job or to an equivalent post on terms and conditions which are no less favourable to her and to benefit from any improvement in working conditions to which she would be entitled during her absence.”
This entitlement has been enshrined in section 26 of the Maternity Protection Acts, which states:
"on the expiry of a period during which an employee was absent from work while on protective leave, the employee shall be entitled to return to work ... in the job which the employee held immediately before the start of that period."
Repeatedly, as held in the below decision, the Tribunal has found that any departure from the above entitlement constitutes direct discrimination of the woman concerned on the ground of gender.
In the case of Grainne Campbell v. Bank of Ireland Private Banking DEC 2013046, the Complainant alleged gender-based discrimination as a result of her taking a period of maternity leave and, upon returning to work, discovering that she had been demoted. The Equality Officer noted the situation regarding a woman returning to work as set out in the above directive, that same principle being enshrined in the Maternity Protection Acts and that any departure from same constituted direct discrimination on the gender ground.
In Byrne v. Minister for Defence, the applicant went on maternity leave whist holding the rank of Captain in the Defence Forces. During this time, two Engineer Officers retired, leaving the applicant and four other male Engineer Officers eligible for a fixed promotion. The applicant was not informed of this and therefore she was not given the opportunity to present her case to the interview board. The four male Engineer Officers were subsequently promoted to the rank of Commandant in accordance with the Defence Force Regulations, 1942. Furthermore, during the applicant's leave, and without her knowledge or consent, she was transferred to an alternative barracks. The applicant claimed that these events constituted unlawful discrimination, contrary to the provisions of the Equal Treatment Directive. The Respondent argued that the applicant was ineligible for the promotion by failing to satisfy the criteria of the Defence Force Regulations as incorporated into the applicant's contract of appointment. Pursuant to the Regulations, satisfactory service of nine years as Captain is required for a fixed promotion to the rank of Commandant. The Regulations also require the completion of certain training courses, which the applicant had not completed. Although the applicant had not completed the requisite courses, the Regulations also provide that the Chief of Staff can alternatively determine that an applicant has "otherwise reached a satisfactory standard". The Court held that this determination would require some form of assessment, which was never carried out for the applicant. The High Court found for the Applicant, determining that the Respondent had subjected her to unlawful discrimination by excluding her from the promotion process while on maternity leave.
In the case at hand, the Complainant submits that she was summarily dismissed due to her pregnancy or inability to attend at work due to her pregnancy. It is submitted that this is in itself clear evidence as to amount to a prima facie case of discrimination on the grounds of gender and family status and that, in those circumstances, the burden of proof must now shift to the Respondent to prove the contrary.
Relief Sought by the Complainant
In Citibank v. Ntoko, EED045, it was held that an award of compensation for the effects of discrimination, harassment and victimisation must be proportionate, effective and dissuasive.
It is submitted that, in accordance with this principle, the Adjudicator should take into account the particularly serious and sustained level of discrimination and harassment which occurred in the Complainant’s employment with the Respondent along with the significant level of resources available to the Respondent. The Complainant seeks compensation for the effects of discrimination and dismissal perpetrated by the Respondent pursuant to the Employment Equality Acts, on the higher end of the Adjudicator’s jurisdiction which, in this case, amounts to €28,600.
The Complainant seeks compensation for the failure of the Respondent to provide her with terms and conditions of her employment pursuant to the Terms of Employment (Information) Act, 1994, on the higher end of the Adjudicator’s jurisdiction of a maximum of 4 weeks salary, amounting to €1,100.
The Complainant gave evidence on her own behalf, at the hearing.
Ms. Stacey Barrett gave evidence that she started working for the Respondent in August 2020 as a line cook, that she was cooking food and serving customers on the till; that she was there with Mr. Malizia’s nephew and Ms. Samantha Cleary.
The Complainant said that she worked 25-30 hours per week and earned roughly €270 per week and was paid in cash. She became pregnant in January 2021 and informed her employer in 2021. She said that she told her employer so early in her pregnancy as she was ill. She said that she was ‘in and out to the toilet’, that ‘Samantha was looking at me.’ She said she was ‘pregnant and experiencing severe morning sickness’, ‘vomiting up to 20 times a day, losing weight and severely dehydrated.’ She said that she sought medical attention, that February 1st was the first time she went to hospital (CUH). She said that she was ‘severely dehydrated’, that she ‘needed to be put on a drip’, she had ‘hyperemesis’ – ‘severe morning sickness, morning to night, for the duration of my pregnancy’, that she ‘needed to be signed off work.’ She explained that the medication has a cumulative effect and she was therefore hopeful that she ‘should be okay to return to work in a week’ or so, ‘but it didn’t work out that way for me.’
Ms. Barrett outlined that she went back to work on February 2nd and ‘it was awkward.’ She said that Ms. Cleary’s eleven year old daughter was working in the shop that day when Ms. Cleary passed the remark that the Complainant was “pregnant and not disabled.” Ms. Barrett said that she ‘couldn’t believe that she [Ms. Cleary] was ‘brazen enough to say it.’ Ms. Barrett said that she (Ms. Barrett) ‘didn’t say anything’ as there was ‘an eleven-year-old standing beside me.’
Ms. Barrett said that on February 5th, 2021, she was ‘rostered off’, i.e. not scheduled to work those days.
Ms. Barrett said that on February 12th , 2021, she was ill and phoned in sick. She said that during this time she was still ‘ill’ but there were ‘no comments about my work’ and ‘no missed days’, ‘but I was very ill - constantly throwing up, ill, dehydrated, losing weight, I wasn’t gaining weight when I should have.’
Ms. Barrett stated that February 18th/19th, 2021, was the next time she was ill and was ‘signed off for two weeks.’
She said her employer knew but ‘it was ignored really.’ She said that Ms. Cleary ‘knew when I was running past her to get to the toilets.’ Ms. Barrett said that she was so unwell that often she was ‘up all night, vomiting.’
Ms. Barrett said that ‘between [February] 12th and the 19th, I was rostered for one day, I would normally be rostered for three to four days.’ She highlighted the text messages of February 12th, 2021, and the email she received at 4 pm that day dismissing her. She said that when she received it, she rang her mother, then rang Citizen’s Advice, who advised her what to do – she said she was advised to email back and to give her employer ‘a chance’ to remedy it.
The Complainant was asked as to the effect the treatment she received from her employer had on her. She said that ‘the moment that I told Samantha [Cleary] I was pregnant, I had a knot in my stomach going in there [to work].’
Ms. Barrett was asked if there were any efforts made to make her feel supported. She said: ‘No. Absolutely not.’ She said that Ms. Cleary told her anecdotes about when she (Ms. Cleary) was pregnant but the Complainant ‘felt they were pointed’ – she said Ms. Cleary had told her that she (Ms. Cleary) ‘worked up until the day before she gave birth’ and then ‘put the buggy in the back of the shop when her children were small, and worked away.’
Ms. Barrett said that she ‘really looked forward to telling Samantha (Cleary) my news.’ The Complainant explained that she was ‘previously pregnant’ but ‘lost that pregnancy at the start of my employment’ and that Ms. Cleary ‘was aware of that.’ The Complainant said that ‘it was nice to be able to tell her’ her good news, but she said that Ms. Cleary ‘just really ruined those first couple of weeks of pregnancy for me’ and ‘then, I was left without a job.’ She said that she ‘couldn’t even claim illness benefit’ as she was ‘preparing for this child to come into my life.’
Ms. Barrett was asked whether she was employed at the moment? She said: ‘No.’
She was asked whether she was seeking employment currently. She said: ‘No. I’ve chosen not to.’
Terms of Employment
The Complainant outlined that she never received a contract of employment, nor anything else in writing. She said that the only thing she received from her employer was a little scrap of paper with an employment number, for Revenue. She said that she received her hours (for the next week) by text message from Ms. Samantha Cleary. She said that she requested a contract from Mr. Claudio Malizia and he said: “Yeah, yeah, I’ll get it.” but he never did. In response to a query from the Adjudication Officer, at the hearing, the Complainant said that she received one or two payslips by email.
Concluding comments by Counsel for the Complainant
He submitted that dismissal while pregnant constituted a prima facie case, that the prima facie case was made out and not refuted.
He cited O'Brien v Persian Properties trading as O'Callaghan Hotels, DEC-E2012-010, in which the Equality Officer relied on the decision of the Court of Justice in Dekker v Stichting Vormingscentrum voor Jong Volwassenen, 1990 E.C.R. I-03941 in confirming that pregnancy is ‘a special protected period’ and cited the Labour Court in Trailer Care Holdings Limited v Healy, EDA128 in which it found that only the ‘most exceptional circumstances not connected with the condition of pregnancy allow a woman to be dismissed while pregnant.’
Further, he submitted that Article 10(2) of the Pregnancy Directive 92-85-EEC requires that if a woman is dismissed during her pregnancy, the employer must cite duly substantiated grounds for her dismissal. He highlighted the dismissal and all that was said to the Complainant during her employment, and, in particular, the email sent to her by her employer. He submitted that there were no exceptional circumstances not related to pregnancy, relied upon by the employer.
He submitted that it was firmly established law that discrimination due to pregnancy is direct discrimination, i.e. that it cannot be objectively justified. He highlighted Dekker, in this regard.
He also cited Aseeko Assembly Ltd. V Corcoran EED033-2003. He submitted that 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. He submitted that there was no evidence this was done; in fact, the evidence was to the contrary.
He concluded by stating that it was his submissions that both complaints (under the Employment Equality Act and under the Terms of Employment (Information) Act) were well-founded.
Summary of Respondent’s Case:
No appearance was entered by or on behalf of the Respondent.
I am satisfied that the Respondent was on notice of the hearing date, time and place.
Findings and Conclusions:
The preliminary application – decision of the Adjudication Officer
The Adjudication Officer, at the hearing (on 28/03/2023), adjourned for almost an hour, to consider the application, the submissions and the case law cited.
I am satisfied that the correct legal Respondent was fully aware at all times of the case against it (and the nature of the case against it).
I find that the two people named on the complaint form, and in receipt of the correspondence, were the two owners and two directors of the Respondent company, one of whom is also the Company secretary, where the Complainant had worked.
I am satisfied that no prejudice or injustice accrues to the Respondent, by the amendment of the complaint form.
I find that it is difficult to avoid the conclusion that jurisdiction was, in fact, accepted, on behalf of the Respondent company, by the two owners and two directors.
But, in any case, for clarity, I am acceding to the Complainant’s application to adjoin the Respondent, Easy Meals Ltd.
I note that the first occasion when this matter was raised was on 23/03/2023.
The substantive case
CA-00058328-001 – Employment Equality complaint – pregnancy related discrimination and pregnancy related, summary discriminatory dismissal on the grounds of gender and family status.
I find for the Complainant.
I find, in line with Dekker, that the Complainant was the subject of direct discrimination on the ground of gender. I find that she was dismissed as a direct result of pregnancy-related illness, in circumstances where the Respondent was on notice of her pregnancy. I find that this was a discriminatory dismissal, on the gender ground. I find that the treatment meted out to the Complainant was egregious in nature, and I note its foolishness in addition to its unlawfulness.
I further accept the Complainant’s uncontested evidence that she was the subject of inappropriate comment at work by her line manager, Ms. Samantha Cleary, relating to her pregnancy. I note the Complainant’s distress both at the treatment to which she was subject and the economic and emotional toll it took on her, and in particular, in terms of the impact of the unlawful discrimination, I note the Complainant’s inability to access social welfare supports which may otherwise have been available to her.
In employment law, pregnant women are a particularly protected class of person legally, in recognition of the vulnerability – including economic vulnerability – which pregnancy and its attendant circumstances can bring. I am required to direct an amount of compensation which is ‘effective’, ‘persuasive and dissuasive’, in line with the prevailing European legal jurisprudence in this area.
In terms of calculating the maximum jurisdiction under the legislation and also in determining quantum of an appropriate award in this case, there was limited supporting documentation available substantiating the hours the Complainant worked, on average, during the period of her employment, but what there was does not point to an average of 25-30 hours per week, but rather points to a lesser number of hours than that.
For completeness, I find that the Complainant adduced no evidence in relation to discrimination based on family status, and therefore, I find the complaint that the Complainant was discriminated against on the basis of family status has not been made out.
CA-00058328-002 – Terms of Employment complaint – No contract
I find that this complaint is well-founded.
I accept the Complainant’s uncontested evidence that she did not receive a contract (or any terms of employment), in contravention of the requirements of the Terms of Employment (Information) Act 1994.
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
CA-00058382-001 – I find for the Complainant. I find that the Respondent directly discriminated against the Complainant on the gender ground, ultimately effecting a summary discriminatory dismissal of a pregnant woman. I find that this complaint is well-founded, and I direct the Respondent to pay the Complainant €16,000 compensation within 42 days of the date of this decision.
CA-00058382-002 – I find for the Complainant. I find that this complaint is well-founded and I direct the Respondent to pay the Complainant €500 compensation within 42 days of the date of this decision.
Workplace Relations Commission Adjudication Officer: Lefre de Burgh
Adjoining a Second Respondent; Incorrect Respondent; Prejudice; Pregnancy; Gender; Direct Discrimination; Discriminatory Dismissal; Terms of Employment; No contract;