EDA1133

• "Dear ….,
  I apologise for not contacting you about mereturning to work.
  I give you my word that I won't abuse the phone when I return to work.
  I hope to hear from you to let meknow when it suits you for meto
  return back to work.
  
  Yours sincerely,”

The Applicable Law

Article 2(7) of Directive 2002/73 which replaced Article 2(3) of Directive 76/207 provides as follows:

• “This Directive shall be without prejudice to provisions concerning the protection of women, particularly as regards pregnancy and maternity.

  A woman on maternity leave shall be entitled, after the end of her period of maternity leave, to return to her job or to an equivalent post on terms and conditions which are no less favourable to her and to benefit from any improvement in working conditions to which she would be entitled during her absence.

  Less favourable treatment of a woman related to pregnancy or maternity leave within the meaning of Directive 92/85/EEC shall constitute discrimination within the meaning of this Directive.”

The Maternity Protection Acts 1994-2004 transposed into Irish law the provisions of the EU Pregnancy Directives. Section 23 (a) renders void any purported termination of the employee’s employment while on maternity leave. Section 26 of the Act confers a general right to return to work with the same employer, in the same job and under the same conditions of employment as before the maternity leave. Section 28 places an obligation on the employee to notify in writing (or cause to be so notified) her employer, of her intention to return to work and of the date on which she expects to return to work. Section 40 provides, in effect, that where an employee is not permitted to return to work she is deemed to have been dismissed on her expected date of return to work. Dismissal on the grounds of pregnancy or for the exercising of rights under the 1994-2004 Act is prohibited.

The protection afforded to women during pregnancy and maternity leave being a special protected period also applies to their right to return to work at the expiry of that leave. If that safeguard no longer applied due to a delay on the employer’s part of a return to work then the protection afforded by the Directives and the Acts to women on protective leave would be rendered nugatory.

Constructive dismissal

It is the Complainant's case that the Respondent did not wish her to return to work following her maternity leave, that he placed a number of obstacles in her way and that working relations had irreversibly broken down by the attitude he took towards her concerning her right to return and that therefore she had no reasonable alternative but to leave her employment. She claims that in these circumstances her resignation in May 2008 amounted to a discriminatory constructive dismissal in contravention of Section 8 of the Acts.

The Respondent denied thatthe Complainant was in fact dismissed and stated that at no time did he have any intention of refusing to allow her return to work and acted at all times on the understanding that she would return once her maternity leave had come to an end.

Section 2(1) of the Act defines a dismissal as including:

• “[T]he termination of a contract of employment by the employee (whether prior notice of termination was or was not given to the employer) in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled to terminate the contract without giving such notice, or it was or would have been reasonable for the employee to do so….”

InA Worker (Mr O) v An Employer (No 2)[2005] 16 ELR 132 this Court extensively considered the circumstances in which this provision can apply. Here the Court said: -

• "This definition is practically the same as that contained at section 1 of the Unfair Dismissals Acts 1977 –2001 and the authorities on its application in cases under that Act are apposite in the instant case. It provides two tests, either or both of which may be invoked by an employee. The first test is generally referred to as the “contract” test where the employee argues “entitlement” to terminate the contract. The second or “reasonableness” test applies where the employees asserts that in the circumstances it was reasonable for him or her to terminate the contract without notice.
  
  The contract test was described by Lord Denning MR inWestern Excavating (ECC) Ltd v Sharp [1978] IRLR 332as follows:
  
  • “If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself discharged from any further performance”
  
  This passage describes a situation in which an employer commits a repudiatory breach of contract. In such circumstances the employee is entitled to accept the repudiation and consider him or herself dismissed. However not every breach of contract will give rise to repudiation. It must be a breach of an essential term which goes to the root of the contract. This is a stringent test which is often difficult to invoke successfully.
  
  There is, however, the additional reasonableness test which may be relied upon as either an alternative to the contract test or in combination with that test. This test asks whether the employer conducts him or her affairs in relation to the employee, so unreasonably that the employee cannot fairly be expected to put up with it any longer. Thus, an employer’s conduct may not amount to a breach of contract but could, none the less, be regarded as so unreasonable as to justify the employee in leaving. Further, the employer may commit a breach of contract which may not be of such a nature as to constitute repudiation, but is so unreasonable as to justify the employee in resigning there and then.
  • Finally, the authorities indicate that what is reasonable is pre-eminently a question of fact and degree to be decided having regard to all the circumstances of the particular case."
    

Burden of proof

Section 85A of the Acts provides for the allocation of the burden of proof in cases under the Acts. It provides that the Complainant must first establish facts from which discrimination may be inferred. If those facts are established on the balance of probabilities, and they are regarded by the Court as sufficiently significant to raise the inference contended for, the burden of proving that the principle of equal treatment has not been infringed in relation to the Complainant shifts to the Respondent. The Respondent must then discharge that probative burden on credible evidence and on the balance of probabilities.

The facts

The Complainant was due back frommaternity leave on 15^thFebruary 2008. The Respondent was aware that she was on maternity leave and the MB10 Form gave the due date of return. The Respondent told the Court that he had not seen this Form and that it had been signed by a person who looks after the Respondent’s accounts.

As per her first pregnancy, the Complainant called to the office before her due date of return to work to inform both her employer and her replacement of her imminent return. The employer was not present on the day. The Respondent told the Court that he was extremely surprised and confused by the nature of her visit to the office as he had received no notification of her return to work. The Respondent submitted that for reasons which were unconnected to the Complainant’s return he was particularly anxious to treat the replacement employee fairly and accordingly had no intention of terminating the latter’s employment at that time in order to facilitate the Complainant’s return to her duties.

The Complainant then wrote to the Respondent seeking a return to work which was followed by a meeting set up to discuss the possibility of re-employment. At that meeting the Respondent indicated to the Complainant that he was willing to have her return to work one day per week. It was 12^thMay 2008 before the Respondent offered her a return to her normal working hours at which point she was given a warning that if she breached certain conditions laid down in the offer then she would be dismissed.

Findings and Conclusions of the Court

Ms. O’Dwyer, on behalf of the Respondent, submitted that without prejudice to its position that the Complainant was not dismissed; in any event discrimination was not the operative reason for the termination of her employment. She cited the High Court casePauline Mulcahy v Minister for Justice, Equality and Law Reform and Waterford Leader Partnership Limited13 E.L.R. 12 in which O’Sullivan J held that“the mere coincidence of the date of dismissal with the ending of an employee’s pregnancy is not in itself sufficient to raise an inference that the reason for the dismissal is related to pregnancy. Something else is required”.

The Court notes that on the Complainant’s first pregnancy there was no problem with her return to work and she simply performed the same procedure on her return from her second maternity leave. However, at this point the Respondent adopted different procedures and relied upon the premise that as she had not complied with the statutory requirements under the 1994 Act he was not aware of her due date of return and therefore had no job available for her on 15^thFebruary 2008.

The Court is satisfied that when the Complainant sought to exercise her right to return to work there was no job available for her and no prospect of a job. The employer did not ensure her right to return in line with the provisions of the 1994 Act. Furthermore, there was an obligation on the employer when recruiting her replacement cover to ensure that the latter was fully aware of the extent of their employment contract i.e. providing cover for maternity leave in which case a due date of return should have been included in the fixed-term contract of employment or alternatively in the case of a specified purpose contract of employment would have been self-evident. The Court has previously found that completion of the Form MB10 (Part IV of which must be completed by the employer authorising the dates of maternity leave), in the absence of alternative notice, complies with the employee’s notification obligations, seePromowear Limited[2006] EED061.

• • “While this case is being heard under the Employment Equality Act, 1998, and not under the Maternity Protection Act, 1994, the Court is satisfied that the provision of this information constituted notice for the purposes of Section 28 of the 1994 Act.
    
    Accordingly, the Court must accept that the dates supplied on the MB10 form are dates when the Complainant was covered under “protective leave.”