Case Number: DEC-E2012-051- Full Case Report. Equality Tribunal

• Docket Number: DEC-E2012-051- Full Case Report
• Date: 01 April 2012
• Court: Equality Tribunal

The Equality Tribunal

Employment Equality Acts 2000 to 2011

EQUALITY OFFICER'S DECISION
NO: DEC-E2012-051

Parties

ELEANOR MERRIMAN
(Represented by Ms. Colette Egan BL on the instructions of Smyth Stapleton & Company Solicitors)

V

EDENDERRY SWIMMING POOL LIMITED

File No. EE/2009/675 Date of Issue: 26 April 2012

Keywords:
Employment Equality Acts - Discriminatory Dismissal - Gender - Family Status - Maternity Leave - Prima Facie Case

1. Dispute and delegation

1.1 This dispute concerns a claim by Ms. Eleanor Merriman (hereafter "the complainant") that she was subjected to discriminatory dismissal by Edenderry Swimming Pool Limited (hereafter "the respondent") on the ground of her gender. The complainant claimed that while she was on maternity leave she received notice of termination. This termination was later withdrawn but was reactivated as soon as her maternity leave had expired. The date of dismissal was 30 July 2009.

1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 11 September 2009 under the Employment Equality Acts. On 3 February 2012 in accordance with his powers under section 75 of the Acts, the Director then delegated the case to Tara Coogan- an Equality Officer - for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts on which date my investigation commenced. As required by section 79(1) and as part of my investigation, I proceeded to hearing on 15 March 2012.

2. Case for the complainant

2.1. The complainant was employed as a swimming pool manager on or about 5 August 2008. The complainant was pregnant at the time of commencing her employment. She was offered a permanent contract. During her time with the respondent the complainant transformed the swimming pool and got the service up and running. Her maternity leave began on 15 December 2008. The complainant enjoyed her time with the respondent and accepted that many of the volunteers provided her with assistance where needed at the later stage of her pregnancy.

2.2. In or around March 2009 the complainant was contacted by phone and informed that her position as pool manager was no longer available. The complainant was shocked and upset by this news and sought further clarification from the respondent. The complainant was invited to meet with a member of the Board of Management but as she received no clarification in writing about her position she declined to attend that meeting. The complainant was very worried about the certainty of her role with the respondent and she feared the worst in that her position would no longer be available to her on her return from maternity leave.

2.3. The complainant wrote an email to the respondent on 22 April 2009 querying about her position. She received a reply indicating that her position 'remains as before' on 24 April 2009.

2.4. The complainant - in agreement with the respondent - decided to use up her remaining annual leave days at the end of her maternity leave and thus was not due to return on the day her maternity leave ended. While on her annual leave she received a letter in the post informing her that her employment had been terminated and that she was not expected to return to her workplace. The date of dismissal was 30 June 2009. One day after her maternity leave ended.

2.5. The complainant relied on Paquay v Société d'Architeches Hoet + Minne SPRL (Case C-460/06) concerning an employer's right to terminate a woman's employment at the end of her maternity leave. Here the complainant had been dismissed 21 days after her maternity leave had finished and the national court had found that the decision to do so had been taken while she was on maternity leave. The European Court found that article 10 of the Pregnancy Directive should be interpreted as prohibiting not only notification of a decision to dismiss on grounds of pregnancy and/or the birth of a child but also the taking of such a decision to dismiss in preparing the permanent replacement of such a worker before the expiry of that period. The ECJ held that Article 10: "must be interpreted as prohibiting not only the notification of a decision to dismiss on the grounds of pregnancy and/or the birth of a child during the period of protection set down in paragraph 1 of the Article but also the taking of preparatory steps for such a decision before the end of that period".

2.6. The complainant also relied on Batt v Palmece Limited...