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Pregnant employee awarded €25,000 for unfair dismissal

Facts: The Complainant commenced employment with Respondent on 6th November 2017. During the entire period of her employment, she received a very positive performance review and was promoted to Acting General Manager in June 2018, until a new General Manager was appointed in July 2018. The Complainant informed the General Manager that she was pregnant on 12th September 2018, and on 17th September 2018, the Complainant was invited for a disciplinary hearing to be conducted on 19th September 2018. On 20th September 2018, the Complainant was dismissed by the Respondent on the grounds of “gross misconduct” and “capability to do her job”. The Complainant argued that she had passed her probation and had never received any complaints/warnings from the Respondent. Upon appeal to the independent third party investigator, the decision of the Respondent was upheld and the Complainant was dismissed. The Complainant also argued that the Independent Investigator during her appeal was appointed by the Respondent without acquiring any consent from the Complainant and that the Independent Investigator worked for the Respondent.

The Respondent however argued that the dismissal was because of the Complainant’s serious breach of health and safety standards and her failure to perform her job function.

Findings: Referring to Trailer Care Holdings Ltd v Deborah Healy (EDA128) the Adjudicating Officer, Ewa Sobanska, stated that the protection for pregnant employees is a fundamental and inviolable right. However, the Adjudicating Officer also pointed out that a dismissal would not be considered unfair if it was based on the capability/competence or qualification of such employee. The Adjudicating Officer further held that from the date the Complainant notified the Respondent of her pregnancy, she entered into the protected period. There were no records or evidence to show that the Complainant’s performance was questionable or sub-par, but her professional records showed that the Respondent trusted the Complainant. The Adjudicating Officer also noted that although there were notes of the meeting in relation to the Complainant’s performance, there was no warning issued to the Complainant. Noting the decision in McGuirk -v- Irish Garden Publisher Limited (DEC-E-2007-031) that the employee’s poor performance can give rise to termination of employment even where the employee is pregnant; the Adjudicating Officer held that in the instant case, there were serious concerns regarding the Respondent’s business but neither the previous nor the current General Manager were held responsible. The Adjudicating Officer held that the Respondent was unclear as to what the exact allegations were against the Complainant.

In order to decide the loss arising out of unfair dismissal, the Adjudicating Officer held that as the further employment is not permanent in nature, the amount of earning did not stop the loss arising from such unfair dismissal. Due to the Complainant’s limited attempt to mitigate her loss, the Adjudicating Officer awarded the Complainant a compensation of €25,000.00.

Note to Employers: A pregnant employee is given extra protection under the Unfair Dismissals Act (“Act”) and the protection is applicable irrespective of the duration of their employment. However, the burden of proof in such cases is on the Complainant to prove that the dismissal was “wholly or mainly due to the pregnancy”. When an employee is pregnant the employer is required to follow robust fair procedures when disciplining or dismissing such an employee. Once fair procedures are followed, a dismissal will not be considered unfair where the employer has raised and communicated genuine performance issues with such employees. In order to avoid such hefty penalties, the Employers must keep performance related records i.e. that the employer can prove that it had nothing to do with the pregnancy.

https://www.workplacerelations.ie/en/cases/2019/november/adj-00017826.html

29th November 2019

Anne O’Connell Solicitors

Fitzwilliam Hall

Fitzwilliam Place

Dublin 2.

www.aocsolicitors.ie

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