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Labour Court Overturns WRC Finding of Discrimination where Pregnant Employee was Denied the Opportunity to Work Remotely During the COVID-19 Pandemic

In the Labour Court case, Saint John of God Community Services v. Ann Doherty EDA 2313,the Respondent employer appealed the Workplace Relations Commission (“WRC”) finding that the Complainant had been discriminated against on the grounds of her family status. The WRC had awarded the Complainant €45,000 for the effects of the discrimination.

Facts: The Complainant was employed by the Respondent from 2016 as an instructor in the Employment Services division. In February 2020, the Complainant became aware that she was pregnant with her second child. Due to pregnancy-related illness, the Complainant was on sick leave from 26th February 2020 to 4th March 2020. She returned to work on 4th March and went on pre-booked annual leave on 13th March. The Complainant was due to return to work from annual leave on 24th March 2020, but at this time the first wave of pandemic related restrictions was in place. The Complainant called her Co-Ordinator, Mr. Des Balmer, on 18th March to discuss options for her return to work. The Complainant asked to continue in her instructor role in the Employment Services division, but requested permission to work from home as she had no childcare support and was pregnant. Mr. Balmer informed the Complainant that her work from home request could not be facilitated and that no annual leave (other than pre-agreed leave) was being granted. Her only options were to go on unpaid leave or make herself available for redeployment to a residential setting as the Respondent was prioritising that support service. Mr. Balmer gave evidence that this was the same message he had given to many of her colleagues who had contacted him.

The Complainant was unable to work in a residential setting as she had no childcare and she could not afford to take unpaid leave. Her GP provided her with a medical certificate for four weeks on grounds of pregnancy-related ”stress and low mood”.

Ms. Jeanine Scanlon became the Complainant’s immediate line manager when she commenced the role of Supervisor in the Employment Support service on 16th March 2020. The Complainant contacted Ms. Scanlon, explained her current sick leave and offered to assist Ms. Scanlon in whatever way she could. The Complainant provided extensive assistance to Ms. Scanlon throughout March and April 2020 while she was on certified sick leave.

In May 2020, the Complainant was in contact with a male colleague who told her that he was working from home. She contacted Mr. Balmer and informed him of the significant amount of work that she had being doing for Ms. Scanlon during her sick leave. She explained that there was work for her to do and that it could clearly be done from home. Mr. Balmer restated that it was not possible for the Complainant to work from home. The Complainant was very upset and became very unwell following this conversation and was worried the extended sick leave would impact negatively on her career.

The Complainant spoke to Ms. Scanlon on 19th May and explained that her priority was her own health and looking after her family but that she hoped to be able to return to work before starting maternity leave. Ms. Scanlon suggested to the Complainant that she talk to her GP about putting “cocooning” or “something pregnancy covid related” on future medical certificates as this would enable the Respondent to restore her to full-pay. The Complainant talked to her GP who advised if she put “cocooning” on the certificate she would not be able to return to work for the duration of the pandemic restrictions and the Complainant did not want this.

On 9th July 2020 Ms. Scanlon asked the Complainant when she thought she would be able to return to work. The Complainant told her that she hoped to return on 18th August 2020. On 7th August, the Complainant was informed that she was being temporarily redeployed to the Respondent’s facility in Maynooth. The Complainant considered the Maynooth facility as unsuitable as she was at a late stage in her pregnancy and the relocation would have involved her working in a public-facing, patient handling role. Mr. Balmer gave evidence on behalf of the Respondent that the facility had been refurbished, there was excellent ventilation, and there were only a small number of service users at any one time.

On 14th August 2020, the Complainant’s consultant signed her off work as cocooning. The Respondent sent her to Medmark for an occupational health assessment and she was confirmed as unfit to work until after the birth of her child. The Complainant was informed by Ms. Scanlon that she would be restored to full wages but on 27th August she noticed her pay was significantly reduced. Ms. Jenny Smyth, Human Resources Officer, advised the Complainant that HSE guidelines provided for different levels of cocooning. After the Complainant requested further information Ms. Smyth suggested a meeting. The Complainant declined to attend the meeting and it did not take place. The Complainant lodged a WRC complaint on 31st August 2020.

Decision: The Labour Court held that the Complainant’s claim that she, as a parent with childcare responsibilities, was treated less favourably than her colleagues was not well-founded. The Court noted the “consistent and uncontradicted” evidence of the Respondent’s witnesses that in mid-March 2020 the Respondent decided to prioritise residential services and redeploy staff from day care services. The Court looked at the comparators identified by the Complainant – in particular the male colleague who told the Complainant he was working from home. The Respondent’s Programme Manager gave evidence that this colleague “N” was redeployed to residential services throughout the first wave of the pandemic but if there were shifts where he was not needed, he worked on administrative tasks from home. The Court also found that N was not an appropriate comparator because he also had family responsibilities, albeit for older children. It was the evidence of Ms. Scanlon that she undertook night shift duties in a residential setting while also continuing to provide support for users of the Supported Employment service as best she could. The Court accepted the evidence on behalf of the Respondent that the reason the Complainant was not contacted about the opportunity to work remotely when this became available around May 2020 was because she was out on certified sick leave.

The Respondent’s appeal was successful and the Court set aside the decision of the WRC Adjudicator.

Takeaway for Employers: This case highlights the importance of employers applying policies consistently for all employees. In this case, the Respondent was able to demonstrate that the policy of redeploying staff to its residential services and not facilitating working from home arrangements at the start of the pandemic was consistently applied. The Complainant was unable to identify an appropriate comparator who was treated more favourably than the Complainant.


Authors – Tara Kelly, Jenny Wakely and Anne O’Connell

31st March 2023

Anne O’Connell Solicitors

19-22 Lower Baggot Street, Dublin 2


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