AOC Solicitors COVID-19 Hub - Read More

AOC
- News

AOC
- News

Award Granted For Pregnancy Related Dismissal As Employer Unable To Prove Sanction Of Dismissal Was Proportionate

Facts: The Complainant was employed as a Community Development Officer on 1st November 2016 with an annual salary of €16,335.80. On 9th March 2017, she was notified of termination of her employment due to allegedly screaming at a child, although there were three other minor allegations. A letter confirming her termination was sent on 14th March 2017. The Complainant lodged a complaint of unfair dismissal and discriminatory dismissal with the Workplace Relations Commission on 13th September 2017 on the grounds of her gender and specially the fact of her pregnancy. The case was heard in December 2019 at which the unfair dismissal claim was withdrawn and the Complainant pursued the discriminatory dismissal claim under the Employment Equality Act.   

Preliminary Issue: The Respondent claimed that the claim was outside the six month period from the last alleged discriminatory act and therefore out of time. The Respondent stated that the last act of discrimination was on 9th March and the letter of 14th March was not a separate or new act but reiterating the decision which was communicated to the Complainant on 9th March.  The WRC Adjudicator agreed with the Respondent that the claim was out of time but allowed the claim to proceed as the Complainant was able to prove that she had reasonable cause for the short delay and had a number of letters from doctors in that regard.

Findings and Conclusions: The WRC Adjudicator referred to the Labour Court decision in  Southern Health Board v. Mitchell which laid down the principle that the burden of proof initially lies with the claimant, and after establishing the facts, such burden shifts to the respondent to prove that there has been no discrimination. He went on to rely on the book of Employment Equality Law by Bolger, Bruton and Kimber – Round Hall Press 2012, Section 2-222 which states that in the case of alleged pregnancy dismissal, the mere fact of existence of pregnancy shifts the burden of proof to the employer to prove that there was no discrimination. The Adjudicator quoted extensively from the Labour Court decision in Teresa Cross (Shanahan) Croc’s Hair and Beauty v Helen Ahern EDA195.

In this case the Adjudicator held that the pregnancy of the Complainant was established during the entire duration of her employment, including the investigation and disciplinary process. He found that the Complainant had discharged the burden of proof, which had then moved to the Respondent. Strangely, the Adjudicator held that “it is not apparent that dismissal, as opposed to a less severe sanction, was the only reasonable outcome in the circumstances”. He relied on the fact that the Respondent did not report the incident of screaming at a child to any child protection agency, regardless of the fact that it may not amount to a reportable offence. Furthermore, the Adjudicator relied on the fact that the Respondent did not suspend the Complainant, even though the Respondent explained that the Complainant was on sick leave and therefore did not need to suspend her.

The Adjudicator held that:

While it is the Respondent’s position that the dismissal occurred as a result of the Complainant’s misconduct, the evidence as presented does not credibly or cogently demonstrate that this was the sole reason for the dismissal.”

He found that the Respondent had not discharged its burden of proof and awarded compensation of €8,167.90, representing six months of her salary. The Adjudicator, Brian Dolan, indicated that the level of the award was due to the Complainant’s short service (being just over four months) thus indicating that he would have awarded more if she had more service.   

Takeaway for the Employers:  The safeguard for a pregnant employee commences as soon as her pregnancy is known to the employer until the end of her maternity period. The burden of proof on an employer to illustrate that a dismissal is not due to the employee’s pregnancy is high and it is strongly advised for employers to maintain proper written records and evidence in this regard. In this case we believe that the test was wrongly applied and that the disproportionality of the sanction itself in this case did not mean that it was due to the Complainant being pregnant. It will be interesting to see if this decision is appealed.

30th March 2020

https://www.workplacerelations.ie/en/cases/2020/march/adj-00010478.html

Anne O’Connell Solicitors

Fitzwilliam Hall

Fitzwilliam Place

Dublin 2.

www.aocsolicitors.ie

Related Articles