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Latest in Employment Law>Case Law>Gilesview Limited v Dabkowska [2012]
Gilesview Limited v Dabkowska [2012]
Published on: 10/08/2012
Issues Covered: Dismissal Discrimination
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Background

he complainant began working as a deli assistant for the respondent’s bakery/coffee shop on 21st September 2009. She informed her employer of her pregnancy on 7th October and gave her due date as 14th June 2010. On 22nd November, her employment was terminated with one week’s notice. Her subsequent claim before the Equality Tribunal that she had been dismissed on grounds of her pregnancy succeeded and she was awarded €15,000 in compensation. The respondent employer’s claimed that the complainant had been dismissed on grounds of redundancy and that this had occurred due to a substantial downturn in trade caused by the routing of the new M3 motorway which had effectively located the business into a cul-de-sac. 

On appeal to the Labour Court the respondent presented further evidence of the necessity for the complainant’s redundancy, stating that in November 2009 a 13.5% decline in monthly sales had taken place, placing enormous strain on the company’s overdraft. The directors of the company decided that it must cut its overheads and, as the complainant was the ‘last-in’, it was decided to let her go. The decline in sales caused by the opening of the motorway at the end of October continued and a further employee who left in January 2011 had not been replaced. On behalf of the complainant, it was submitted that the reference letter issued to her made no explicit mention of redundancy and that it hardly made any sense to recruit her in September knowing that the motorway was soon to open. The respondent in turn argued that although it was aware of this development, sales were holding steady at that point so there was no reason not to recruit the necessary staff.

The respondent also brought to the attention of the Court, a number of written statements submitted by former or current employees who had been pregnant while working for the respondent and wished to give evidence. The complainant’s representative argued that as all but one of these had been pregnant after the complainant’s dismissal, their evidence was of no value to the court. The court then decided it would hear the one remaining witness who was no longer in the employment of the respondent. She said in her statement that she was five months pregnant when she commenced employment with the respondent in June 2002 and that she became pregnant again in 2005 but felt no negativity from the respondent on either occasion. When complications arose with her pregnancy, she said that she had been fairly accommodated. 

In its analysis of the law in this area, the Court made reference again to the line of cases that has established the principle that discrimination on grounds of pregnancy constitutes direct discrimination on grounds of gender. It emphasised that this has been recognised in the Equal Treatment directive (2006/54/EC) at Article 2.2 (c), which provides that any less favourable treatment of a woman related to pregnancy or maternity leave constitutes unlawful discrimination. In turn, given the fact that the complainant was pregnant at the time of her dismissal, the onus shifted to the respondent employer to show that the complainant’s pregnancy was not the reason for the dismissal.

Examining the evidence, the Court noted that for six weeks after the complainant informed the respondent of her pregnancy, no issues were raised in relation to her condition or her work during this time. The available financial information also showed a sharp decline in sales from the beginning of November 2009 which coincided with the opening of the M3 motorway. Evidence was also provided by one of the owners of the business that he did not anticipate the effect the opening of the motorway would have and that, in addition, it opened four months before it was due to. In light of this, the Court concluded that the recruitment of the complainant on 21st September to replace a departed employee was not unreasonable at the time. The Court noted that an unsolicited reference provided to the complainant when she was let go stated that due to the unforeseen decline in business there was no option but to cease her employment. Neither the complainant nor another employee subsequently let go had been replaced nor had the business ever returned to its pre- September 2009 levels.

Taking all the evidence into account, the Court concluded that the financial difficulties caused by the decline in business warranted a reduction in costs in the form of a reduction in staff numbers. The complainant was the employee with the shortest service and her dismissal arose from a genuine redundancy situation and was in no sense related to her pregnancy. The Equality Officer’s decision was overturned.

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Disclaimer The information in this article is provided as part of Legal Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article. This article is correct at 10/08/2012
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