Complainant

Respondent

Parties

Karen  Condell

McHughs Restaurants T/A Drumboe Restaurants Limited

Representatives

  N/A

Peter Dunlea, Peninsula Ireland

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00065934-001

11/09/2024

The Complainant began working for the Respondent on 25 October 2023 as an Assistant Manager at its restaurant in Portmarnock. She alleged that her dismissal, communicated by the Respondent on 30 July 2024, was discriminatory on the basis of gender, asserting that the redundancy cited as the reason was not genuine.

The Complainant stated that she informed the Respondent of her pregnancy in June 2024. She alleged that when she was subsequently informed by Mr Foley at the end of July 2024 that the restaurant would be closing, he assured her that he would look at redeployment options for her. She stated that she waited a week and then sent a text message to Mr Foley to inquire if he had anything for her. Despite a number of text message exchanges over the duration of her notice period, all of which were initiated by the Complainant, the Respondent failed to source an alternative role for her.

The Respondent acknowledged that the Complainant informed them of her pregnancy in June 2024, and therefore, they had actual knowledge of it. In late July 2024, the Respondent decided to close the Portmarnock restaurant, effective 30 July 2024, with the final day of service being the same day. The Complainant was notified of this decision via a phone call from her manager, Paul Foley.

The following day, the Complainant was formally notified in person. During this meeting, Mr. Foley mentioned that the Respondent would attempt to find alternative employment for the affected staff. Employees with over a year of service were subsequently offered roles elsewhere within the Respondent’s group. Only one staff member with less than a year’s service—a chef—was redeployed due to a specific vacancy matching their role.

On 7 August 2024, the Complainant contacted Mr. Foley to inquire about potential alternative positions. He responded that he would check across the company for any suitable opportunities. The Complainant followed up again on 21 August 2024, and Mr. Foley reiterated that he would contact his colleagues, although he noted that “all our hospitality businesses are worryingly slow.”

On 27 August 2024, Mr. Foley informed the Complainant that no suitable role had been found despite genuine and thorough efforts to secure an alternative position within the group for her. Mr. Foley also mentioned that although he had no authority over the grocery division, there might be roles in a deli, but these were potentially unsuitable due to the Complainant’s pregnancy. Following this, the Complainant did not initiate any further contact with the Respondent.

The Respondent confirmed that other employees were offered roles within the group, but redeployments were based on specific qualifications and circumstances. For example, an experienced bartender and mixologist was transferred to another bar, and the restaurant manager from Portmarnock was reassigned as an assistant manager at a comparable pub location. Another Portmarnock restaurant staff member was offered a temporary bar position but declined, as it was not a permanent role.

The Law:

Pregnancy-related discrimination is discrimination on the ground of gender. Section 6(2A) of the Employment Equality Acts 1998-2015 (the “EEA”) 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 been or would be treated.”

Burden of Proof:

Section 85A of the EEA provides for the allocation of the probative burden between a Complainant and a respondent as follows:

“85A.–(1) Where in any proceedings facts are established by or on behalf of a Complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.”

In Mitchell v. Southern Health Board [2001] ELR 201, the Labour Court held:

“The first requirement […] is that the claimant must “establish facts” from which it may be presumed that the principle of equal treatment has not been applied to them.  This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. 

It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the Respondent to prove that there is no infringement of the principle of equal treatment.”

In Melbury Developments Ltd. v. Valpeters [2010] 21 ELR 64, the Labour Court found that “mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”.

In Teresa Cross (Shanahan) Croc’s Hair and Beauty v. Helen Ahern, EDA 195, the Labour Court held:

“It is abundantly clear from these [Court of Justice of the European Union] authorities, and from the legislative provision of the European Union, that women are to be afforded special protection from adverse treatment on account of their condition, from the commencement of their pregnancy until the end of their maternity leave. The entitlement to that protection is to be regarded as a fundamental right within the legal order of the Union which the Courts and Tribunals of the Union must vindicate within the limits of their jurisdiction. It seems equally clear that where a pregnant woman is treated adversely because of her condition during this period of special protection the employer bears the burden of proving, on cogent and credible evidence, that such treatment was in no sense whatsoever related to her pregnancy. This is a matter that the Court will consider further in addressing the application of the burden of proof in cases such as the instant case.”

As noted in Chapter 4.154 of “Employment Equality Law” 2nd ed. (Bolger, Bruton and Kimber):

“It is now well established that the fact of pregnancy is sufficient in itself to shift the burden of proof to the employer, once the applicant has established less favourable treatment. It is then for the respondent employer to prove that the less favourable treatment was on not on grounds of the pregnancy.”

Findings:

The facts of the case are that the Complainant was pregnant and made allegations of discrimination against the Respondent based on her gender.

Having considered her evidence, as set out in the summary above, I am satisfied that there is prima facie evidence that the Complainant was discriminated against on the gender ground given that the Respondent failed to source an alternative role for her following the closure of the restaurant where she worked, in contrast to the efforts made for many of her colleagues, none of whom were pregnant but who also worked in Portmarnock and for whom the Respondent found roles elsewhere in the group.

As the Complainant has established a prima facie case of discrimination, the burden of proof shifts to the Respondent to discharge this burden by demonstrating that her dismissal on the ground of redundancy was genuine.

In assessing if they discharged this burden, I note firstly that the body of case law, such as Student Union Commercial Services v Traynor UDD1726, Component Distributors (CD Ireland) Ltd v Brigid (Beatrice) Burns UDD1854 and JVC Europe Ltd v Panisi [2011] ELR 113, highlights the importance of a transparent, participatory process when handling redundancies.

This includes:

·         Consulting with employees in good faith and at the earliest opportunity.

·         Exploring all alternatives to redundancy, including reassignment.

·         Considering the employee's skillset and willingness to undertake alternative work.

In the instant case, I note that there were no discussions with the Complainant prior to the notification of redundancy having been communicated to her by Mr Foley on 30 July 2024. Following this notification, she was not afforded an opportunity to engage in what would have been a very belated consultation process with the Respondent regarding the redundancy, in advance of her termination date. Specifically, she was not asked for input, nor did the Respondent consult with her at any stage around her transferable skills, qualifications, or previous experience.

Given the lack of consultation with the Complainant regarding her skills, experience, and potential alternative roles she might be considered for, and the fact that the Respondent’s witness, Mr Foley, was unable, when questioned during the hearing, to confirm whether any other roles—aside from those offered to other employees who had worked with the Complainant in the Portmarnock restaurant and which had not been offered to her—had become available within the group during her notice period, I find that the Respondent did not take sufficient and effective measures to avoid dismissing the Complainant on the grounds of redundancy

Considering the foregoing, I find that, the Respondent has failed to rebut the inference of discrimination, and that the Complainant was discriminated against on the gender ground.

As the Complainant established a prima facie case of discrimination which the Respondent failed to rebut, I find that she was discriminated against.

In accordance with section 82 of the Act, I order the Respondent to pay the Complainant €17,000 compensation, namely 26 weeks’ pay, in relation to her discriminatory dismissal. In calculating this award, I have regard both to the very negative effects of the discrimination on the Complainant and the requirement pursuant to Article 17 of the Framework Directive that the sanction be “effective, dissuasive and proportionate”. Whilst such discrimination might well justify a higher award, I have recognised the short tenure of the Complainant’s employment and the fact that the Respondent is a relatively small enterprise.