Insights

The Industrial Tribunal on 1 December 2014, held that based on the facts of the case the dismissal of a part-time employee who refused to work on a full-time basis was discriminatory, and awarded the employee compensation to the tune of €4,000.

Background

Anita Cassar Belizzi (‘Employee’) worked as a Managing Pharmacist on full time reduced hours with San Raffael Pharmacy (‘Employer’). The Employer instructed the Employee to increase her weekly working hours and to start working on a full time basis. The parties failed to reach an agreement on the salary to be paid and eventually she was dismissed on the basis of redundancy. The Employee argued that her family circumstances were such that she could not work on a full-time basis. She insisted on a significant pay rise so that her husband could leave his current job and take care of their two children. By way of context, the Employer’s request was made some time after the Employee had returned from her maternity leave.

After the Employee was dismissed, another pharmacist, who was single and had no children, was employed in her stead. The Employee immediately found another job with another pharmacy, but complained that the Employer did not give her enough time to look for another job in peace.

Decision

The Industrial Tribunal stated that the Employee had primarily been employed on a part time basis in July 2008, moved on to a full time contract in September 2008, and was changed to full time reduced hours in October 2011. The Industrial Tribunal appreciated that the role of a Managing Pharmacist was required in terms of the law and that there needs to be a balance struck between the interests of employees and employer, especially in small or medium sized companies.

The core issue is that she was replaced by a single, childless person which reflected the Employer’s intention to avoid burdens imposed on his business by the Employee, in terms of maternity leave, special working hours, and so on.  The Industrial Tribunal appears to have inferred from the evidence produced that the dismissal of the Employee was mainly motivated by her family circumstances and previous history of taking maternity leave.

The Industrial Tribunal also took into consideration that the Employee immediately found a new place of work, and had worked her entire notice period. The Employee was awarded €4,000 as compensation for the discrimination against her upon termination of employment.

Comments

Employers are frequently at odds as how to approach situations where employees are not flexible in altering working hours arrangements and do not always appreciate the needs of the business.

The Industrial Tribunal seems to have taken a cautious approach in this case and qualified its finding that there was discrimination on a ‘very limited basis’. More importantly, in our view, the Industrial Tribunal acknowledged that a small business usually has no room to manoeuvre with limited financial resources, but had its hands tied in view of a blatant case of replacing a married mother with a single employee.

Flexible and family friendly measures are necessary in today’s organisations which thrive to foster an inclusive and diverse working environment, but should be within the context of clear internal policies on maternity leave and flexible working arrangements. Based on past experience, it is also recommended to have written agreements in place with employees who take advantage of these family friendly measures to properly manage both parties’ expectations in the short and long term accordingly.

If you have any queries in relation to the above, please contact Dr Matthew Brincat, Dr Clement Mifsud Bonnici and Dr Lara Pace.