Our latest review of Labour Court decisions looks at two cases involving discrimination in the workplace. The first concerns an alleged pregnancy dismissal and the second looks at victimisation related to an employee's religious beliefs.


1. Introduction

It has been reported in previous emails (see for example Number 966 – 28th February, 2012) that cases of discriminatory dismissal on grounds of pregnancy or the exercise of maternity rights appear to have been growing since the recession began, with an increasing number of complaints of unfair treatment currently flowing through the system.

It bears repeating that the onus of proof in such cases is different from other equality issues, as a result of a number of decisions of the then European Court of Justice (now Court of Justice of the European Union).

For example, in the decision of Intrum Justitia and McGarvey (see email Number 688 – 28th April 2009), the Labour Court awarded the complainant €20,000 in compensation for the effects of discriminatory dismissal on grounds of pregnancy when she was made redundant. Citing the Dekker, Brown and Webb cases, the Court declared that such discrimination is unlawful on the gender ground, as pregnancy is a uniquely female condition and therefore any unfavourable treatment in relation to it must be gender discrimination. Given the legal protection provided to pregnant women in the workplace, where an employee is pregnant and is dismissed from her job, the onus of proof in any claim brought by the employee concerned automatically shifts to the employer to show that alleged discriminatory treatment did not take place.

The first case reviewed in today’s mail demonstrates, however, that it is not impossible to discharge this onus. In this instance, the employer concerned succeeded on appeal in overturning a decision of the Equality Tribunal awarding the complainant employee €15,000 in respect of discriminatory dismissal on grounds of pregnancy. The respondent’s successful appeal hinged on the availability of evidence which demonstrated a significant downturn in its business, the fact that there was a gap of six weeks between the respondent’s knowledge of the complainant’s pregnancy and the dismissal and that a number of both current and former female employees were prepared to give evidence to substantiate the employer’s claim that it did not discriminate on grounds of pregnancy or maternity.

Claims brought under the employment equality legislation on the religious belief ground are quite rare, with only a total of five such claims being taken in 2010 according to the Equality Tribunal’s Annual Report of that year. The second case reviewed in today’s email concerns a retained fire-fighter who alleged that he was subjected to derogatory verbal comments by work colleagues, related to his religion as a member of the Presbyterian Church.

An external investigation commissioned by his employer into these allegations did not uphold his complaints when it ultimately reported some 14 months later. However, as this investigation coincidentally revealed that three weeks prior to the alleged offensive comments, the complainant had disobeyed an order from his superior and left active duty at a fire incident, he was then dismissed. His claims of discrimination on grounds of religious belief and victimisation by way of dismissal failed before the Equality Tribunal. On appeal, the complainant ultimately decided to pursue the victimisation complaint alone and succeeded. The fact that this alleged misconduct had gone unreported and unsanctioned upon up to then made it very difficult for the respondent to convince the Court that the dismissal was not a reaction to his previous complaints.


2. Gilesview Limited and Dabkowska (ADE/11/60, Determination No.EDA1212, 21st May 2012)

The 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.


3. Monaghan County Council and Mackarel (ADE/12/8, Determination No.EDA1213, 7th June 2012)

The complainant in this case was a retained fire-fighter first employed by the respondent in October 2001 and dismissed in December 2007. On 16th October 2006, he made complaints to the respondent employer that he had been subjected to harassment by work colleagues in the nature of derogatory and offensive verbal comments in relation to his religion. The complainant is a member of the Presbyterian Church. The respondent conducted an investigation into these complaints, informally at first and then in the form of a formal investigation conducted by an external consultant. The consultant furnished her written report to the respondent’s Director of Human Resources on 7th December 2007; some 14 months after the allegations were first made. This report did not uphold the allegations but in passing, it noted that on 22nd September 2006 (some weeks before the alleged harassment), the complainant had disobeyed an order from his Officer in Command at a fire incident and had in effect left active duty without authorisation.

The HR Director reviewed this report at home over the weekend and formed the view that the complainant was therefore guilty of gross misconduct. He then wrote to the complainant on 10th December 2007 informing him that his complaint had not been upheld but also drawing attention to the incident of insubordination and providing details. The letter outlined the serious nature of such misconduct in a command structure operating in emergency situations and concluded by stating that, having considered all the relevant evidence, the HR Director was recommending the termination of his employment to the County Manager.

The letter informed the complainant that he had 10 days to appeal this decision. The complainant declined to do so and was dismissed with effect from 10th December. He then referred complaints to the Equality Tribunal on 30th May 2008 alleging discrimination by way of harassment on grounds of religion and victimisation by way of dismissal. In a decision of 23rd December these complaints were dismissed by the Equality Tribunal.

Initially, the complainant appealed on both counts to the Labour Court but he subsequently dropped the ‘harassment on grounds of religious belief’ aspect of his claim and focused on victimisation. This followed an apparently unsolicited admission from the respondent’s representative that the circumstances in which the dismissal took place disclosed a prima facie case. Thus the respondent conceded that the onus was on it to prove that the dismissal was not an act of victimisation. The HR Director gave direct evidence that in recommending the dismissal of the complainant, he was solely influenced by events at the incident on 22nd September 2006 and what he viewed to be the gravity of the complainant’s misconduct. However, crucially, he accepted that he had not interviewed the complainant in order to get his version of events in relation to the incident.

The Court noted that victimisation occurs where a detriment is imposed on an employee as a reaction to a complaint (or other protected act such as supporting an employee alleging discrimination). In practice, this means that the making of a complaint must be a factor influencing the subsequent adverse treatment of the employee; it does not have to be the only or indeed the principal reason for that decision.

It also emphasised that it must be ‘alert to the possibility of subconscious or unrecognised influence operating on the mind of the decision maker’ so that seemingly honest evidence (such as that given by the HR Director) must, in the absence of corroboration, be approached with caution. It noted that the information in relation to the incident of 22nd September 2006 only came into the respondent’s possession in December 2007. This was by way of a report that was commissioned solely to investigate the alleged misconduct of others in relation to the complainant, but which nonetheless went on to address a complaint of serious misconduct against him.

The Court went on to observe that the decision to dismiss the complainant in these circumstances without affording him any opportunity to address the allegations made in the report was striking and amounted to a denial of the most rudimentary form of fair procedure. However, it noted that the question of procedural fairness was not the central issue to be determined in this case. Rather, it was whether the fact that the complainant had made complaints against colleagues was in any sense an influential or causative factor leading to his dismissal.

The Court stressed that the incident relied upon by the HR Director to justify the dismissal occurred some 15 months before it took place, but no disciplinary process was invoked at the time. Thus, but for the complaints of harassment, it would never have come to the HR Director’s attention as there would have been no investigation. Without an investigation, there would have been no report and without a report, there would have been no dismissal.

Ultimately, in all the circumstances, the Court concluded that the respondent (upon whom the onus lay) had failed to prove as a matter of probability, that the complainant’s dismissal was not a reaction to his complaints of harassment on the religious belief ground. He was awarded €17,000 in compensation for the effects of victimisation.

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