Discrimination on the Grounds of Pregnancy – Key ConsiderationsPosted In: Case Law
Decision NumberCA-00041705-002, ADJ-00031747
Legal BodyLabour Court (LC)
Type of Claim / JurisdictionDismissal, Discrimination and Equality
A recent case before the WRC (An Employee v A Restaurant CA-00041705-002,ADJ-00031747) examines the strong protections in place for pregnant employees.
Background and claim to the WRC
The Complainant commenced employment with the Respondent in 2019 as a waitress in the coffee shop. Her duties included serving customers, making coffees, cleaning tables and mopping floors.
The Complainant informed the Respondent that she was pregnant on the 2nd March 2020 and she claimed that her relationship with her employer changed at this point. She claimed the Respondent was less than friendly with her and commented to her "now the rules have changed you have to do what I say". The Complainant gave evidence that she requested additional help with cleaning and lifting of heavy bin bags because of her pregnancy and despite agreeing that there would always be someone to help, the Respondent told the other waitress to go home leaving the Complainant to do the cleaning alone.
Later that night on the 2nd March 2020, the Complainant received a text message from the Respondent to say that her start time the next day was 10am but if she did not feel well she could come in later. The text message went on to say that the Respondent was delighted for the Complainant and to let her know if she felt sick or tired and to take plenty of rest breaks. The Complainant said that she was very surprised by this response as it was a different tone from how the day ended at work.
The Complainant continued to work up until the 12th March 2020 and to be rostered until the 15th March. As a result of Covid 19, the restraurant closed the following week and there was no communication from the Respondent until the start of June 2020 when the Complainant asked the Respondent to complete her maternity benefit application. The Respondent confirmed that the accountant would send the Complainant "the letter when it is filled up". However, the Complainant said that she received an envelope with a blank maternity benefit application together with a letter from the accountant dated 22nd June 2020, noting a resignation date of 12th March 2020. The Complainant wrote to the Respondent in July 2020 and again on 14th August 2020 but received no response. Her solicitor wrote to the Respondent on the 24th September 2020 and again no reply was received.
In December 2020, the Complainant submitted her complaint to the WRC alleging that she had been dismissed on the grounds of her pregnancy in breach of the Employment Equality Acts.
Resignation or Dismissal?
Dismissal was in dispute at the hearing as the Respondent maintained that the Complainant had resigned from her position verbally on 2 March 2020 when she first informed her of her pregnancy. The Complainant was adamant that this did not occur.
The Adjudication Officer found that it was clear from the Complainant's reference to taking annual leave to look after her daughter on 12 March 2020 together with the fact she received the PUP, when the restaurant had to close due to Covid, and the fact that she asked the Respondent to complete her maternity benefit application that she did not voluntarily resign. The Adjudication Officer also noted that the first indication of termination came in the letter dated 22nd June 2020 from the Respondent to the Complainant. It was also noted that in response to this letter, the Complainant wrote to the Respondent immediately seeking to resolve matters, together with two subsequent letters including one from her solicitor, all of which went unanswered.
Being satisfied that the Complainant was dismissed, the next issue for the Adjudication Officer to consider was was whether the dismissal was as a result of the Complainant's pregnancy.
Council Directive 2006/54 on the implementation of the principle of equal opportunities and equal treatment of men and women in matter of employment and occupation, the "Recast Directive" expressly provides that less favourable treatment on the grounds of pregnancy is a form of discrimination prohibited by the Directive:
"Discrimination shall include…. Any less favourable treatment of a woman related to pregnancy or maternity leave within the meaning of Directive 92/85/EEC"
Council Directive 92/85 Pregnancy Directive, the "Pregnancy Directive" is further aimed at improving the health and safety of pregnancy employees and provides specific rights to pregnant workers thereby moving away from the need for a comparator at all. The Directive provides for two types of substantive protection for employees: first, health and safety protection and, secondly, protection from less favourable treatment on the grounds of pregnancy.
Section 2A of the Employment Equality Acts expressly prohibits direction discrimination on the grounds of pregnancy:
"(2A) 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 have been"
The leading Irish case for dismissal on the grounds of pregnancy is O'Brien v Persian Properties trading as O'Callaghan Hotels, DEC-E2012-010, where the Equality Officer relied on the decision of the Court of Justice in Dekker, Webb and Brown in confirming that pregnancy is " a special protected period" and pointed out that the Labour Court in Trailer Care Holdings Limited v Healy, EDA128 have found that only the "most exceptional circumstances not connected with the condition of pregnancy allow a woman to be dismissed while pregnant".
The Adjudication Officer noted that the Respondent did not attempt to rebut the Complainant's evidence that the atmosphere had changed after it was notified of the Complainant's pregnancy, nor that another employee was sent home leaving the Complainant to clean alone, despite her asking for help. The Adjudication Officer also commented that it was of particular note that the Respondent continued to trade during the first Covid 19 lockdown on a takeaway basis but at no stage offered the Complainant work.
The Adjudication Officer also found that when the Complainant provided the maternity benefit application form to the Respondent, the Respondent did not assert at that point that it was no longer the Complainant's employer due to her resignation but instead said that she would pass it to the accountant for completion. In evidence, the Respondent repeatedly stated that in hindsight she would have done things differently, which the Adjudication Officer found only served to "acknowledge the Complainant's claim".
Ultimately, the Adjudication Officer found that the Complainant's claim for dismissal on the grounds of pregnancy was well founded and awarded the Complainant compensation in the amount of €15,000, equivalent to almost 8 months pay.
Key takeaways for Employers
- On becoming aware of an employee's pregnancy, it is vital for employers to access whether there are any risks to the employee's health and safety and that of her developing child, in the workplace.
- Where risks are identified, the employer must consider adjusting the working conditions or working hours. Where this is not possible, it may be appropriate for the employee to take health and safety leave.
- When it comes to resignations, it may be helpful to have a standard resignation procedure in place in order to avoid miscommunication i.e. require any resignations be confirmed in writing.
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