Complainant

Respondent

Parties

Sarah  Mulreany

Laboratory Supplies LtdLennox

Representatives

Richard Grogan & Associates

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00026537-001

18/02/2019

The complainant began work with the respondent on June 26^th 2017 and had an accident at work on August 8^th 2018.

She went on sick leave and did not return to work. Her employment was terminated on December 3^rd 2018.

In fact, at the time of the termination of her employment the complainant had become pregnant. While it is accepted that she did not tell her employer of this development, its failure to follow proper procedure in relation to the termination of employment where long term sick leave is an issue is directly responsible for this.

In other words, had the respondent referred the complainant for a medical opinion as to her long term health status and likelihood of making a recovery to enable a return to work the fact of her pregnancy would have been revealed.

The respondent did not do this and terminated the employment without seeing medical certification.

There is an absolute bar on dismissing a pregnant employee in Ireland. Dismissal is permitted in exception circumstances only and even then, where the ‘competent authority’ has been notified.

There is no ‘competent authority’ in Ireland and this means that dismissal during pregnancy is absolutely prohibited.

The complainant argues that as there is no competent authority which might permit a dismissal during pregnancy then no pregnant worker can be dismissed in any circumstances. There is nothing in Irish law which require a worker to notify an employer of their pregnancy.

Being unaware of the pregnancy is therefore also no defence.

By way of background, the respondent says that the complainant went home after her accident on August 8^th, 2018 and submitted a medical certificate the following day saying that she was unfit for work.

On August 16^th she was reminded of the company policy on submission of medical certificates.

In due course the respondent received notice from the complainant’s solicitor advising of a personal injury claim.

On October 11^th, and again on November 1^st (although the second email was misdirected and a further one sent on November 13^th) the respondent wrote to the complainant enquiring when she would be fit to return to work, and also asking for original copies of certificates which had until then been submitted as email attachments.

The respondent had also sought details of the nature of her injury.

On November 14^th the complainant responded to say that she was not in a position to say when she would be returning and offering to attend a consultation with the company doctor.

The respondent replied to say that it could not keep her job open indefinitely and giving her seven days to respond.

There was further correspondence with her solicitor and on December 3^rd her employment was terminated on the ground of incapacity and on the basis that she had not provided the information it had sought.

The respondent says that at no time was it aware that the complainant was pregnant and that this is conceded by the complainant. The protection afforded by the legislation crystallises once an employer is put on notice of the pregnancy.

This case turns on the simple point of whether, as the complainant argues, the protection of the Act is activated even if the employer is not aware of the pregnancy, or, on the other hand whether notification is required to trigger its protection.

The complainant, in its first submission notes that Article 92/85 of the ‘Pregnancy Directive’ defines a pregnant worker as follows;

‘Pregnant worker shall mean a pregnant worker who informs her employer of her condition in accordance with National Legislation or National Practice’.

However, as will be seen above the complainant says that the absence of a ‘competent authority’ in Ireland for the purposes of exempting certain dismissals allows one to reach the conclusion that this means a pregnant worker may not be dismissed in any circumstances including where an employer is not aware of the pregnancy, the definition above notwithstanding.

As a proposition this is simply illogical. Its elements are in no way connected and it is a form of flawed syllogistic reasoning.

The absence of a competent authority for the purpose of exempting certain types of termination has no bearing on the point at issue; which is whether the respondent is required to be aware of the fact that an employee is pregnant.

This reference in Article 2 follows the prohibition of the dismissal of pregnant workers ‘from the beginning of their pregnancy to the end of their maternity leave’

It also flies in the face of common sense that the absence of specific legislation requiring notification confers protection regardless of notification (and therefore knowledge of the pregnancy) and the complainant, when invited to submit legal authority for the proposition accepted that she could not do so.

The complainant relied on the decision in Trailer Care Holdings Ltd v Deborah Healy, Labour Court EDA 128.

In that decision the Court gives extensive consideration to the strict protections afforded to pregnant workers and the presumption of discrimination.

The decision contains the following.

‘The entitlement to that protection is to be regarded as a fundamental and inviolable right within the legal order of the Union which the Courts and Tribunals of the union must vindicate within the limits of their jurisdiction. It seems equally clear that where a pregnant woman is dismissed during this period of special protection the employer bears the burden of proving, on cogent and credible evidence, that the dismissal was in no sense whatsoever related to her pregnancy’.

The Court continues to look at issues related to the burden of proof and, for example refers to the English Court of Appeal decision in Wong v Igen Limited [2005] IRLR 258 which permitted of the discriminatory ground being ‘a trivial influence’ without breaching the protections afforded.

In the Travel Care Holdings case the respondent was not only fully aware of the complainant’s pregnancy but there was clear evidence of an immediate deterioration in her treatment by the respondent, and, as the Labour Court noted where ‘the dominant disposition of the Respondent towards the complainant descended into one of enmity.

This is of no assistance to the complainant’s case that ignorance of the complainant’s pregnancy is not a factor; indeed if anything it reinforces the principle that where an employer had no knowledge of the pregnancy then it meets the test set out by the Court that ‘that the dismissal was in no sense whatsoever related to her pregnancy’.

The other argument advanced by the complainant is that had the respondent properly processed the termination on grounds of incapacity the fact of the pregnancy would have been revealed.

This is somewhat speculative. No case was made beyond mere assertion that any medical examination required for the purpose of establishing the complainant’s fitness to return to work would in fact have done so, or more critically that the medical practitioner would have been in a position to communicate this information to the respondent.

Accordingly, I find that the complainant was not dismissed on the grounds of her pregnancy and her complaint fails.

For the reasons set out above I do not uphold complaint CA-00026537-001 and it is dismissed.

Pregnancy, notification to employer.