Facts: Siobhan Nolan, the Complainant, worked for Gino’s Italian Ice Cream Limited, the Respondent from March 2013 until 22nd September 2018. The Complainant went on maternity leave in April 2018 which was to conclude on 30th September 2018. The Respondent appointed Ms Luczak, during this time. In August 2018, the Complainant wrote to the Respondent regarding her return to work and expressed her interest to work in the management level. She was advised that the Area Manager would contact her. When she visited the shop a few days later, the Shop Manager advised her that she would be leaving the employment and that Ms Luczak would be replacing her. The Complainant sought clarification on this and she was informed that her options will be discussed in a meeting in mid-September. This meeting did not materialise and the Complainant received an email on 13th September and a message on 20th September enquiring her return to work date.
The Complainant argued that the Respondent directly discriminated against the Complainant (discrimination on grounds of pregnancy is direct discrimination – Dekker v. Stichting Vormingscentru voor Jonge Volwassen (VJV-Centrum) C177/88 (1990) EUECJ R177/88). The Respondent claimed that they did not discriminate as the Complainant was returning to the same role that she had prior to her going on maternity leave. It further asserted that it was not obliged to promote any employee. The Respondent further claimed that the Complainant was scheduled to be placed on a management development programme on her return from Maternity Leave. The Complainant filed a complaint with the WRC and the Adjudication Officer dismissed the claim as the Adjudication Officer, Mr Pat Brady found that “the Respondent’s handling of the matter was insensitive and inconsiderate, it was not unlawful and did not breach the Complainant’s Employment Equality Acts”.
The Complainant appealed this decision of the Adjudication Officer to the Labour Court.
Decision: The Labour Court referred to Croc’s Hair and Beauty v. Helen Ahern, ADE/16/58, Directive 2006/54 and the Lisbon Treaty and observed that “the special protection afforded to women from the commencement of their pregnancy until the end of their maternity leave is to be regarded as a fundamental right” and where the pregnant woman is treated differently, “the employer bears the burden of proving, on cogent and credible evidence, that such treatment was in no sense related to her pregnancy”. The Court were satisfied that the Complainant provided sufficient evidence of a prima facie case of discrimination due to her maternity leave, and hence the burden of proof was on the Respondent to prove otherwise. The Court further noted that the Respondent could not prove that it had a written policy in place to support its argument that no staff member could be appointed unless they had undertaken the Respondent’s training programme, as this was drafted only after WRC hearing. The Court concluded that the Respondent had not come anywhere near meeting the burden of proving that the treatment of Complainant was unrelated to her pregnancy. Further referring to Case 406/06 Paquay v. Societe d’architectes Hoet +MinneSPRL (2007) ECR 1-8511 that Court noted that the level of compensation in such cases should ‘guarantee real and effective judicial protection and have a real deterrent effect on the employer’.
Taking into account all factors, the Court overturned the WRC Decision and awarded the Complainant a compensation of €20,000.
Takeaway for the Employers: When filling vacancies, employers must be mindful of its employees who are on protected leave and ensure that they are notified of the vacancy and get an opportunity to apply for the role. If not, the employer must be able to prove that the reason for not doing was for reasons other than the protected leave. Failure to do this will be costly to the employer.
Link – https://www.workplacerelations.ie/en/cases/2020/october/eda2017.html
Authors – Anne O’Connell & Chaitra Girish Mallya 24th November 2020
Anne O’Connell Solicitors
19-22 Lower Baggot Street, Dublin 2
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