Facts
On 11th June 2019 the Labour Court awarded an employee €51,168 following discriminatory treatment she received when returning to work from maternity leave. The Workplace Relations Commission (WRC) awarded the Claimant €11,602.50 for the unfair treatment she received. Both parties appealed the decision of the WRC Adjudicator.
Facts
The Claimant was employed by the respondent from 22nd July 2014 on a contract that stated she would be based at Bristol-Myers Squibb (BMS) site in Swords. In March 2015 the Claimant accepted a contract of indefinite duration. In August 2017 the Claimant commenced maternity leave and was due to return to the BMS site on 5th March 2018.
On 3rd March the Respondent advised the Claimant not to attend the BMS site but to attend Head Office in Ballymount for a meeting. The Respondent stated that the Claimant was not to return to the BMS site as the Bristol Myers-Squibb, the Client had requested she would not return.
The Claimant was offered an alternative position of a three-month contract working in Ballymount which was later extended to 6 months.
The Claimant submitted that as a permanent employee a three/six-month placement in a location that entailed a 4 hour round trip could not comply with the requirements set out in section 27 of the Maternity Protection Act. The Claimant further submitted as a result of the failure of the Respondent to return her to her original or a suitable alternative post she was left with no income which affected her health and ability to pay rent when she had to leave. The Claimant also could not receive social welfare payments as the Respondent refused to provide her with her p45, which she only received following the WRC hearing.
The Respondent submitted that the Claimant was removed from the site as the client had expressed a preference for the male employee who provided cover for the Claimant while on maternity leave. The Respondent further submitted that they had met their obligations under Section 27 of the Maternity Act as they had provided an alternative position for the Claimant.
Decision
The Court rejected the Respondent’s position where it stated that their contract with a third party included a clause which allowed the third party to dictate who could be assigned to the site. The Court held that this clause was not superior to any statutory rights the Claimant had.
The Court also rejected the Respondent’s reliance on section 27 of the Maternity Protection Act 1994 which provides for when it is “not reasonably practicable” for the employee to return to her original post. The Court noted that the requirements of this section are that a new contract may be offered, but must be “not less favourable” to the employee. Before the Claimant was on maternity leave she was on a permanent contract, based 30 minutes away from her home, the Court did not accept that the alternative three/six month contract offered to the Claimant together with a four hour round trip as “not less favourable”.
The Court further rejected the Respondent’s assertion that despite they had stopped paying her in April 2018 they still considered her an employee until she requested her p45 which they contended was an act of resignation by the Claimant.
The Court held that the Claimant was discriminatorily dismissed. The Court granted the maximum amount, two years of the Claimant’s salary in awarding her €51,168, proportionate to the discrimination directed towards the Claimant.
https://www.workplacerelations.ie/en/cases/2019/june/eda1919.html
27th June 2019
Anne O’Connell Solicitors
Fitzwilliam Hall, Fitzwilliam Place, Dublin 2
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