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Employee Awarded €40,000 Compensation For Pregnancy Related Dismissal

Facts: The Complainant was offered a job as a pharmacy assistant with a three month probationary period in November 2018. The Complainant was pregnant at the time and was advised that she did not need to disclose this to her employer. In December 2018 she informed her employer the Respondent that was she was 25 weeks pregnant and gave evidence that her employer was very angry stating that she was extremely dishonest to not reveal her pregnancy at the interview stage.

The Complainant was informed that a review would be held after Christmas, however a meeting was not arranged until after work on the 17th January 2019. The Complainant learnt that her employment was being terminated and the main reason was because the Respondent felt that she was dishonest in her failure to disclose her pregnancy. A termination letter was received on 19th January 2019, setting out the Respondent‘s disappointment over the Claimant’s failure to disclose she was six months pregnant when she applied for the positon and stating that it was a “deceitful act” and he had tried to disregard her “foul play”. The Complainant’s employment ceased on the 31st January 2019.

The Respondent, in his evidence at the hearing stated that he was concerned that the Complainant had overstepped her knowledge on several occasions, despite her positive reference and 16 years previous experience. The Respondent contended that she failed to adhere to his directions and guidance and had continued to issue incorrect advice to customers. He further stated that she did not have a good rapport with other staff and her daily performance and productivity were not justifying her wages relative to her colleagues. The Respondent gave evidence that the reason this was not stated in the letter of termination was that he did not wish to degrade or belittle the Complainant and especially not in writing. The Respondent further stated that while he was disappointed on being informed of the Complainant’s pregnancy, it was not the pregnancy but the deception and the acts and words used to achieve it that was the issue.

Preliminary Issue: For the Complainant to have legal standing bring a claim for unfair dismissal under the Unfair Dismissal Act 1977 (“the Act”) service of 12 months is required. While the Complainant did not have this length of service, Section 6(2) of the Act provides that where the alleged reason for the dismissal was pregnancy related then a dismissal is unfair regardless of the length of service and the employee may bring a claim under this Act without the required one year’s service.

Decision: The fact of dismissal and the fact that the Respondent was aware of the Complainant’s pregnancy was not in dispute. The Adjudicator described the termination letter as a most judgemental letter and on reading the letter on an objective basis the Adjudicator preferred the evidence given by the Complainant. The contention of the Respondent that the dismissal was not pregnancy related but that it was the deception, acts and words that was at issue was not accepted by Adjudicator as you cannot separate the two.

The Adjudicator noted that the Complainant did not have any obligation to disclose to the Respondent her pregnancy and that the Complainant was entitled to the implied right to fair procedures. If the dismissal was, as contended by the Respondent, performance related then the Complainant was entitled to an engagement process well before her probationary period was due to expire.

The statutory maximum award is 104 weeks remuneration, and the Adjudicator awarded the Complainant circa 76 weeks remuneration amounting to €40,000.00.

Takeaway for the Employers: Employers need to be extra careful when seeking to dismiss an employee who is pregnant and ensure that it can prove that it had nothing whatsoever to do with the employee’s pregnancy. This may involve going through fair procedures regardless of the employee still being in the probationary period and/or having less than one year’s service.

The Adjudicator here also found that there was no engagement process with the Complainant despite the argument that her dismissal was performance related. An employee is entitled to the implied right to fair procedures, none of which was evident in this instance.

Link

Authors – Anne O’Connell & Ethna Dillon

Anne O’Connell Solicitors

Fitzwilliam Hall

Fitzwilliam Place

Dublin 2

www.aocsolicitors.ie

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