by Kady O’ Connell, Partner, Employment Law & Benefits Team at Mason Hayes & Curran LLP
A recent case before the Workplace Relations Commission (WRC) resulted in the complainant employee being awarded €50,000 in compensation for gender and family status discrimination.
The complainant in McGrath v Net Smart Security Limited[1] was an employee of the respondent security company. After informing her employer of her pregnancy, the complainant reported experiencing difficulties with her manager.
The complainant raised a number of issues concerning her treatment during her pregnancy, which included:
- Not being paid by her employer for her time off to attend ante natal appointments. This was despite the fact that other employees had been paid during their time off for ante natal appointments, which is a statutory entitlement.
- Her bonus being negatively affected due to the time that she took off to attend her medical appointments.
- No risk assessment being carried out by her employer to assess what accommodations might be required for her, even though she suffered from a number of medical issues throughout her pregnancy.
Towards the end of her maternity and parental leave, the employee requested to return from maternity leave on part-time hours. However, despite the fact that part-time working arrangements had been facilitated by the employer for other employees, her request was refused. The employee informed her employer that if her flexible working arrangement could not be accommodated, she would not be able to return to work. The employer responded within an hour accepting her “resignation”.
The employee brought several complaints against her employer to the WRC, the primary complaint being that of discriminatory constructive dismissal. Her claims were all strongly denied by the employer, who maintained that the complainant simply resigned from her position.
WRC ruling
The WRC made several findings of fact. It held that her employer did not meaningfully engage with the complainant regarding return-to-work options and a potential timeline for her return-to-work. The WRC also noted that although her employer acknowledged that payments to the complainant “may have been overlooked”, there was no offer made to rectify this “flagrant mismanagement of her statutory entitlements”.
The WRC held that there was no credible explanation to justify why a risk assessment, paid-time off for maternity-related appointments or meaningful and tangible efforts to reasonably accommodate the complainant were not undertaken. It was also noted that there was no explanation given by her employer as to why another employee was paid for her maternity-related appointments and the complainant was not. The WRC did not think that this was consistent with the employer’s assertion that it treated all pregnant employees equally, or that they acted in good faith regarding the complainant.
The WRC found that although the employer had stated that part-time working arrangements were not offered to any employee, relatives of the CEO within the company were afforded this opportunity. The WRC commented that it was notable that the role held by the employee remained unfilled since her departure, and that the employer was unable to justify why a part time employee would not be of assistance in that situation.
The WRC was satisfied that the complainant had discharged the burden of proof by establishing facts from which it may be presumed that the principle of equal treatment had not been applied to her. The onus then shifted to the employer to prove that it had not discriminated against the employee, which it failed to do.
The WRC held that the employee was discriminated against on gender and family status grounds. The complainant, who was earning a salary of €26,000, was awarded €50,000 in compensation. The WRC arrived at this figure through calculating:
- The employee’s present and future loss
- Her loss of statutory protection, and
- The effects on the complainant and the need to create a dissuasive effect through redress, namely the WRC
Key takeaways for employers
- Entitlement to time off: There is a statutory entitlement to take time off for ante natal medical appointments. The law does not put a limit on the number of appointments an employee can attend. Certain notice requirements apply.
- Legal duty to protect health and safety of pregnant employees: Once an employer is notified of a pregnancy, they must conduct a specific risk assessment of the employee’s role.
- Part-time arrangements: While there is no specific entitlement which allows for pregnant employees to change to part-time work, it is unlawful to treat an employee unfavourably because of their pregnancy. This includes a discriminatory refusal of a request for a change in working patterns, especially if a similar request from a non-pregnant employee would have been considered.
- Avoid discrimination: The case highlights the risks of discriminating against employees based on gender and family status, both of which are protected under equality legislation in Ireland.
- High awards: The €50,000 award in this case demonstrates the significant financial risk that employers face if they are found to have acted discriminatorily. The WRC has the power to award compensation of up to two years’ salary for discriminatory dismissals.
Comment
This judgment emphasises the legal protections afforded to pregnant employees, particularly concerning their entitlements to time off for ante-natal care, a safe working environment and fair consideration of flexible working arrangements.
The content of this article is provided for information purposes only and does not constitute legal or other advice.
[1] ADJ-00056559.
About the author
Kady O’ Connell is a Partner on the Employment & Benefits Team at Mason Hayes & Curran. Kady provides strategic and commercial advice to international and domestic clients across all aspects of contentious and non-contentious employment law. Kady is particularly experienced in advising international companies on restructuring strategy, including advising on employment due diligence, employee consultation and on complex TUPE transactions.
Clients rely on Kady to successfully guide them through sensitive HR issues, including complex workplace investigations and dismissals. Kady is an experienced litigator and regularly appears before the Workplace Relations Commission, Labour Court and the civil courts on behalf of clients.
