Complainant

Respondent

Anonymised Parties

An Employee

A Restaurant

Representatives

Dan O'Gorman, O'Gorman Solicitors

Kenny Accountants

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00041705-002

23/12/2020

The Complainant filed her complaint with the Workplace Relations Commission on 23 December 2020 as against her employer.

The hearing was conducted remotely hearing in accordance with the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and Statutory Instrument 359/2020 which designates the Workplace Relations Commission as a body empowered to hold remote hearings.

The Complainant and one witnesses from the Respondent swore an affirmation and gave evidence at the hearing. An interpreter was also present and swore an affirmation.

The complaint was submitted by the Complainant to the Workplace Relations Commission on 23 December 2020 with the most recent date of discrimination on the basis of gender, victimisation and conditions of employment being 22 June 2020. However, this point was addressed in evidence , both orally and in text message dated 27 June 2020, where the Complainant stated she did not receive the notification a date after 30 June 2020 when it was hand delivered by the Respondent to her house. This was the first indication the Complainant was put on notice of her termination of employment by the Respondent.

 The Complainant’s wages were in dispute between the parties with the figure of €439.35 gross paid for the week of 9 February 2020. Remarkably, the Respondent was unable to advise as to exactly what she paid the Complainant, nor was there was no contract of employment. Therefore, I accept the figure of €439.35 for 30 hours a week based on 6 hours a day over 5 days as submitted by the Complainant.

The Complainant gave evidence that she commenced work in 2019 with the Respondent and continued when the Respondent move location. She worked as a waitress in the coffee shop which included serving customers, making coffees and deserts, cleaning tables and mopping floors and removing rubbish bags at the end of the day.

The Complainant describes her relationship with the owner of the Respondent and her colleagues as being very positive. However, it was her evidence that on 2 March 2020 when she advised the owner, Ms S, that she was pregnant, the relationship changed. It was her evidence that she advised Ms S that she had to go to the doctor and she would update Ms S the next week. It was her evidence that Ms S insisted that the Complainant tell her and her first words in response were “your not fair” with an angry look on her face. The Complainant described her reaction as being one of complete surprised as to why she would say anything like that and felt upset given their previous good relationship. 

The next few days at work were described as less than friendly with Ms S failing to say hello to her. The Complainant gave an example of when she was carrying a tray of drinks to a table  and was put under time pressure by Ms S who, from the middle of the restaurant, told the Complainant to serve a different table. The Complainant replied that she would when she was finished with the table but Ms S, in a raised voice, “now the rules have changed you  have to do what I say”. The Complainant repeated that she would attend the other table when she was finished what she was doing.

A few days before this incident the Complainant gave evidence that she requested additional help with the cleaning and lifting of heavy bin bags. She explained she had a difficult first pregnancy so was conscious of her health. Ms S agreed that the Complainant would always have someone with her to do the cleaning. The evidence at the hearing was that on the evening of the table incident , Ms S told the other waitress to go home before the end of day cleaning. As a result, the Complainant was left to do the cleaning on her own despite Ms S’s earlier assurances. It was her further evidence that the waitress who was sent home was aware of the Complainant’s pregnancy and it was her that told the Complainant that she was being sent home early as oppose to Ms S.

A series of text messages were presented by the Respondent in its submission which were put to the Complainant in examination-in-chief by her Solicitor:

2 March 2020 (9.11pm) the Complainant asked Ms S what time she was due to start tomorrow “because I remember only that I’m not fair.” The Complainant stated in her evidence that she sent this message because she was so shocked and upset at the conversation that day with Ms S.

The Respondent replied telling her 10am was the start time but if she did not feel well to come in later, “whatever suits”.  A further text was received from the Respondent stating that she was “delighted” for her and to let her know if she felt sick or tired and to take plenty of rest breaks. It was the Complainant’s evidence that she was very surprised at this response as it was a different tone from how they ended the day at work.

The baby shower was put to the Complainant in cross examination which the Complainant confirmed was discussed after 2 March 2020 conversation. She was also asked if she gave her notice of resignation orally on this date and was there any witnesses. The Complainant relied that “no one else was there , I wanted to talk to my boss after work. It was a private matter between me and my boss”

In cross examination the Complainant confirmed her hours of work changed around the time she informed the Respondent that she was pregnant from 9 am – 3pm but she clarified that it was due to the pandemic and even at that she would come in later or start earlier. The example of cleaning the restaurant on her own was repeated and this was up to 5pm. Upon further questioning the Complainant gave evidence that her hours of work were suppose to change later in pregnancy and at the time in question she only asked for assistance with the cleaning.   

5 March 2020 (9.33pm) the Respondent sent the Complainant a text wishing her good luck with her scan the next day and stating that “going to miss you very much”. 

The Complainant replied on the same date at 10.53pm where she thanked Ms S and said it was “very nice to hear that.” She continues; “please do not get me wrong. I don’t feel like a God or princess, I Just can’t explain that using different words. But it Will be very important time for me and I would like to dedicate it to myself and baby.” The Complainant signs of by saying she would miss the team and would visit the café. Under cross examination she was asked why she ended her text with “thank you” , to which the Complainant said she said it because she wished her luck with her scan. Under cross examination, she confirmed what she meant by her reference to “a God or princess” , was in relation to the fact she did not want to be treated differently.

The Complainant commented in her evidence that this referred to a conversation they had in relation to her maternity leave when the time was right for her to go.

On 8 March 2020, the Complainant text Ms S to advised she had to take the day off work as she was suffering from “severe nausea” and would let her know the next day how she feels. The Complainant commented that she was referring to the nausea that she had at the beginning of her pregnancy.

9 March 2020, the Complainant sent a text to Ms S asking what her start time was the next date to which the Respondent replied asking if she felt better. The Complainant replied explaining that she ate fish which may not have agreed with her and this could have been the reason, but she was feeling better. The Respondent confirmed her start time as 9am by reply. The Complainant gave evidence these messages were very short with no “x” or kiss at the end from the Respondent which differed from her usual text messages.  She stated that she got the impression that Ms S was upset at her at this time as a result of her pregnancy. She could not think of another reasons. Under cross examination, the Complainant accepted there were times when “we would chat normally” but overall she felt that Ms S did not treat her well.

Coming up to the 12 March 2020, her last day she work, the Complainant gave evidence that she attended every day and continued with her duties. She did say that she felt dizzy particular when she came in contact with the chemicals in the cleaning products as she was very sensitive to smell. It was the Complainant’s evidence that she often asked the Respondent for assistance and apart from one day, there was always someone to help her.

On 10 March 2020, she attended work but asked to go home after 1 hour as she felt sick with the smells in the café. She described as being unable to hold back her tears. When she made the request of Ms S, she turned her back on the Complainant and “marched” across the room. Ms S did not say a word in reply to the Complainant which left her confused. After waiting some time for Ms S to return from the kitchen, another colleague came out to her and told her to go home but to get a medical certificate for Friday. It was the Complainant’s evidence that  this was the context behind the text from Ms S on 11 March 2020 requesting a medical certificate for Friday.

On 12 March 2020, the Complainant sent Ms S a text explaining she could not get an appointment with the GP until 29 March due to the Corona Virus. The Complainant requested that Monday and Tuesday be treated as annual leave. She goes on to refer to the closure of the schools and creches as a result of Covid19 and that she was “unable to return to work because I have to take care of” her daughter.

The Complainant confirmed that she did “absolutely not” resign her employment on 12 March 2020.

The restaurant closed the following week and there was no communication from the Respondent whatsoever until the start of June 2020 when the Complainant requested that her employer complete her maternity leave forms. The Complainant commented on the text message from Ms S on 19 June 2020 saying it related to her request to compete the maternity benefit application. The Complainant gave evidence that she dropped the forms into the café and the Respondent confirmed she would fill them out and post them back to her. The text message of 19 June 2020 was in response to the Complainant’s follow up on the application form to which Ms S advised her accountant would send her “the letter when it is filled up”. As there was no response from that text she sent a follow up message on 27 June 2020.

She said she received a further text from the Ms S stating she would drop up the form that evening, 30 June 2020 . It is noted this text was not produced in evidence. It was the Complainant’s evidence that she wasn’t home when Ms S dropped the letter to her house but she found it pushed through the letter box. The envelope included a blank maternity benefit application together with a letter dated 22 June 2020 from the Respondent’s Accountant. The Complainant described her feelings of stress and panic which resulted in her yelling in frustration when she saw the letter as she was afraid she would not receive her maternity leave.

It was her further evidence that she sent a letter to the Respondent in July 2020 but when there was no response a second letter was sent on 14 August 2020. Again, there was no reply to this. After contacting her solicitor, he wrote a letter dated 24 September 2020 but there was no response to this letter either.

In response to questions as to the comparator she states there were approximately 10 employees working with the Respondent and she was the only one that was pregnant. She confirmed she earned €439 per week gross. She said did not receive a contract of employment from the Respondent. 

The Complainant concluded her evidence by saying that from day one she gave her best to the Respondent , she wanted to succeed, she would be complimented by customers both to her and to Ms S. She felt hopeless at the way she was treated by the Respondent in relation to her pregnancy.

Ms S gave evidence as the sole owner of the Respondent. She gave evidence that she was the mother of four children herself. She described her relationship with the Complainant as being positive , “she was a good worker and got on well with the customers”.

She begin by outlining the usual hours of work that the Complainant worked from 11am – 5pm. It was her evidence that she would drive the Complainant home at 6pm. The hours changed when the Complainant told her she was pregnant , at the Complainant’s request. 

Ms S recounted the events of 2 March 2020 in her evidence, she said the Complaint told her she had something to tell her, but she could not tell her yet. To which Ms S said, “it was not fair as I would be fretting all week” and it was then the Complainant told her she was pregnant.

The Complainant worked the following Wednesday and Thursday but came to Ms S to explain that her husband had change his hours of work and she needed to change her hours. Ms S gave evidence that there was a discussion around the Complainant’s husband’s tax credits. There was a further discussion around the baby shower and the Complainant said, “in her country she would dedicate herself to herself and her baby.” and how Irish men were not romantic.  Ms S said she drove the Complainant home that evening. Under cross examination , Ms S confirmed that she was flexible with breaks and changed her hours.

In relation to the text message of 9 March 2020 and the roster, she said that it did not make sense to have two people in on the morning, so the hours were changed. There was evidence given around the change of hours to 9am – 3pm. Instead of Ms S driving the Complainant home , her husband would collect her.

Ms S gave evidence that when Covid19 hit , it was very quick, but she opened a take away service. It was her evidence that the Respondent kept on anyone who was not in receipt of the Pandemic Unemployment Payment.

The next contact she had with the Complainant was when she walked into the restaurant on a Sunday with her husband , in the middle of lunch time when it was very busy. She took the application form from the Complainant and said she would forward any document /letter to her account and went from there. It was her evidence that “I did not have time” to deal with it as she was busy.

 In response to the letter she received from the Complainant in July 2020, she said she felt “dishearten and hurt because she did not know where this was coming from. The picture was very different.” She continued to say that “in hindsight it was not a great thing” and “if I knew this was going to happen I would have been more aware at the time.”

Under cross examination when asked why she left things open with the Complainant, Ms S relied; “In hindsight, I should have received her resignation in writing. If it had been in writing it would have been clearer and there wouldn’t have been a misunderstanding.”

It was put to Ms S that she did not dispute any of the events of 2 March 2020 and it was put to her she was more concerned about herself. Ms S said the comment re being fair was taking out of context.

Ms S confirmed that the Complainant told her she was sensitive to smell and needed assistance with the cleaning.  She said there was no change to the rules and the “same procedures” applied.

In relation to the text message of 12 March 2020 Ms S was asked if she took this as the Complainant’s resignation to which she replied, no “ she gave me a verbal resignation” on 2 March 2020. She said she told her accountant.

In relation to the submissions drafted on behalf of the Respondent, Ms S said she “trusted them to write the correct things, yes”. When it was put to her , that the submission that the Complainant resigned on 12 March 2020 , Ms S confirmed this was the case.

In response to questioning about the maternity benefit application form , Ms S said it wasn’t completed but the Complainant was not on the payroll. She said the Complainant informed her on 2 March 2020 that she was leaving and when she got the form she passed it to her accountant. It was her evidence that; “I don’t do any of the forms” and it was never completed because the accountant said the Complainant was not on the payroll. 

When asked why she left the Complainant “hanging” for a couple of weeks, she said the accountant was busy. She said she sent the letter received from the Complainant in July 2020 , Ms S gave evidence that she sent to her accountants as it was clear there was an issue with the cessation of employment. It was put to Ms S that she sought to “blame” her accountant and it was “someone else’s fault”. Ms S gave the second registered letter to her accountants. It was put to Ms S that she “ignored” the two letters from the Complainant and the letter from her solicitor. It was put to Ms S that she had three opportunities to resolve the situation. Ms S said she relied on her accountant and “went along” with it.

It was submitted on behalf of the Respondent that a replying letter was sent to the Complainant’s solicitor, dated 28 September 2020. The Complainant’s solicitor had no record of this letter. It is noted that this letter was not furnished after the hearing by the Respondent , despite the request for same.

Upon inquiry, Ms S was asked about the request to have a medical certificate after one day of sick leave to which Ms S gave evidence that it was provided for in Clause 9 but she was not relying on the contract , it was different. It is noted no contract was produced by the Respondent.

In relation to the Pandemic Unemployment Payment , she said the Complainant applied herself and she had no notification or idea that she applied for it.

When asked about the rate of pay, Ms S said the Complainant was sometimes was paid in cash or cheque at a rate of “€10.10 or €10.20 per hour”.

Ms S was asked about the Complainant’s request for annual leave on 12 March 2020 and whether she allowed her to take the leave , to which she replied she, “couldn’t remember”.

When asked about when she delivered the letter to the Complainant’s house in June 2020, she said she couldn’t remember the date she brought it to her house.

Resignation or Dismissal?

In the circumstances where it is the Respondent’s case that the Complainant resigned from her position it is necessary to first address whether the Complainant resigned or was dismissed. The burden of proof rests with the Complainant to establish that she did not resign.

After considering the evidence of the parties and in particular the evidence with submissions of the Respondent, there is considerable confusion on the part of the Respondent as to its own evidence around the date of alleged resignation. Ms S was adamant in her evidence that the Complainant verbally resigned on 2 March 2020 when she first informed her of her pregnancy. Yet the Complainant continued to  work until 12 March 2020 and to be rostered until 15 March 2020. There was no evidence around a notice period. There continued to be exchange of text messages with a request for a medical certificate on 10 March 2020 by the Respondent. In the text message of 12 March 2020, the Complainant’s request for annual leave to cover the period the schools and creches to which Ms S couldn’t remember whether she gave her annual leave or not. It is noted no payslip was furnished by either party. The Respondent furnished a letter dated, 22 June 2020, noting a date of resignation as being 12 March 2020. The Complainant accepted she received this letter on 30 June 2020. The submissions repeat on numerous occasions that the Complainant’s date of termination was 12 March 2020 which were signed by the Respondent’s accountant and to which Ms S stated in her evidence that she trusted them to set out the facts. However, it is of vital importance to any employment or equality case that the obligations entirely rest with the employer to ensure it meets its statutory obligations under the legislation. Blame cannot be transferred to a party’s advisers.

It was the Complainant’s evidence that she “absolutely” did not resign from her position on either 2 or 12 March 2020. This is clear from the reference to taking annual leave to look after her daughter on 12 March 2020 together with the fact she received the PUP which was not open to employees who voluntarily resigned from their employment. The request to the Respondent to sign her maternity benefit application form, some months later in June 2020, further validates the Complainant’s case that she did not resign from her employment. 

Having carefully considered the evidence in relation to whether the Complainant resigned from her position on 2 March 2020 or even on 12 March 2020, I prefer the clear evidence of the Complainant. The evidence of the Respondent can only be described as muddled.

There was no evidence presented by either party , including the text messages which were each put to the Complainant, to suggest she resigned from her position. Looking objectively at the words in the text message sent by the Complainant on 12 March 2020 wherein she talks about taking annual leave to cover the period of time the school and creche was closed , I find it implausible that these words could amount to  a resignation in light of the time it was written and sent. It was a snapshot of the time when Covid19 first hit this country and public health measures put in place immediately for what , at the time, was advised was a period of two weeks. It is anticipated that similarly text message would have been received by many employers from employees with children around this time. I find this text message, at most, was a reaction to those public health measures and by no means a resignation from her employment.

I find that the first indication of termination came in a letter dated 22 June 2020 to the Complainant which she says she did not receive until 30 June 2020. The Respondent could not remember what date she hand delivered the letter to the Complainant. It is noted that the Complainant sent a text message at 3.06pm 27 June 2020 to the Respondent requesting the maternity benefit application form which I find demonstrates that she did not receive the letter of termination at that stage.

In response, the Complainant wrote immediately to the Respondent in an attempt to resolve matters and with two subsequent letters, one via registered post and the second from her solicitor, which all remained unanswered by the Respondent.

In conclusion, I find that the Complainant did not resign from her position with the Respondent but was dismissed by the Respondent on 12 March 2020 but was not made aware until the letter of 22 June 2020 but which was not received by the Complainant until at least after 27 June 2020.

Having answered the first question, it is now necessary to review the evidence against the equality legislation together with the caselaw, as to whether the dismissal was as a result of the Complainant’s pregnancy.

Burden of Proof

Section 85A of the Employment Equality Act sets out the burden of proof which applies to claims of discrimination. It requires the Complainant to establish, in the first instance, facts upon which she can rely in asserting that she was discriminated against. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.

The law in relation to discrimination on the grounds of pregnancy

Council Directive 2006/54 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation, the “Recast Directive” expressly provides that less favourable treatment on the grounds of pregnancy is a form of discrimination prohibited by the Directive:

“Discrimination shall include … any less favourable treatment of a woman related to pregnancy or maternity leave within the meaning of Directive 92/85/EEC”

Council Directive 92/85 Pregnancy Directive, the “Pregnancy Directive” is further aimed at improving the health and safety of pregnant employees and provides specific rights to pregnant workers thereby moving away from the need for a comparator at all. The Directive provides for two types of substantive protection for employees: first, health and safety protection and, secondly, protection from less favourable treatment on grounds of pregnancy.

Section 2 A of the Employment Equality Acts expressly prohibits direct discrimination on the grounds of pregnancy:

“(2A) Without prejudice to the generality of subsections (1) and (2), discrimination on the gender ground shall be taken to occur where, on a ground related to her pregnancy or maternity leave, a woman employee is treated, contrary to any statutory requirement, less favourably than another employee is, has been or would be treated.”

The leading Irish case for dismissal on the grounds of pregnancy is O'Brien v Persian Properties trading as O'Callaghan Hotels, DEC-E2012-010, where the Equality Officer relied on the decisions of the Court of Justice in Dekker, Webb and Brown in confirming that pregnancy is “a special protected period” and pointed out that the Labour Court in Trailer Care Holdings Ltd v Healy, EDA128 had found that only the “most exceptional circumstances not connected with the condition of pregnancy allow a woman to be dismissed while pregnant”.

Having carefully considered the evidence of the parities, it appears the conversation between the parties on 2 March 2020 was one where there was a clear misunderstanding. The Complainant’s evidence that the Respondent’s reaction to the news she was pregnant was to reply it was “not fair” in comparison to the evidence of Ms S, who said her comment about not being fair was in relation to having to wait a week for the Complainant  to tell her why she was going to the doctor. The text message of 2 March 2020 at 9.11pm from the Complainant to Ms S specifically references the comment re not being fair; “Roisin , can You remind me what time tomorrow please? Because I remember only that I’m not fair.” The reply from Ms S at 9.27pm does not seek to clarify or dispute this statement but only addresses the start time of 10am and if she did not feel well she could start later. It is noted, a second message, much later at 9.43pm, from Ms S does say that she is “delighted for her but if you feel sick or tired tomorrow let me know. Take plenty of rest breaks”.

The text exchange of 5 March 2020 which is explained by the Complainant as referencing the time when she takes her maternity leave in the future. Later she gave evidence that she had planned on taking annual leave in advance of the start of her maternity leave, so she would have additional time before the baby was born. Ms S gave evidence that they had a discussion around the Complainant “dedicating time to herself and her baby” as was the case in “her country”.  In her evidence Ms S did not give an indication of the time frame she understood the Complainant to be referring to or the notice period the Complainant was due to complete in advance of leaving her employment. I find this to be particularly noteworthy.

The text exchange does demonstrate that Ms S shows concern for the Complainant by telling her to take plenty of rest breaks and she was delighted for her, however, this text comes sometime after her initial response which simply tells the Complainant her start time.

Ms S accepted that it was not normal procedure to ask for a medical certificate after one day of sick leave but did not give any further explanation as to why she did so with the Complainant. Similarly, she did not dispute the Complainant’s evidence that she walked off into the kitchen and instead sent another waitress out to speak to the Complainant , when the Complainant asked to leave early on 11 March 2020 due to feeling unwell. It is noted Ms S’s sent a text message at 9.49am requesting the medical certificate of the Complainant.

The Respondent did not seek rebut the Complainant’s evidence that the atmosphere changed between Ms S and the Complainant after she told her she was pregnant. Nor did the Respondent dispute sending another employee home early which resulted in the Complainant having to clean the premises on her own , despite her request for assistance. Similarly, the Respondent did not dispute the Complainant’s evidence that Ms S in a raised voice across the café floor said to the Complainant, “now the rules have changed you  have to do what I say”.

There was no reply from the Respondent to the Complainant’s text message of 12 March 2020 nor did the Respondent presented any evidence to show it followed up with the Complainant after this date until the letter was pushed the letter box of the Complainant’s home on a date after 27 June 2020.

In the absence of any evidence from the Respondent to rebut the  Complainant’s evidence that the text messages and conversations were not as friendly as they would have with the Complainant under the impression that Ms S was “upset” at her as a result of her pregnancy and the text messages not containing the usual sign off  of “x”, the Complainant’s evidence in this regard is accepted.

It is of particular note that the Respondent did continued to trade during the first Covid19 lock down on a take away basis but at no stage did she offer the Complainant work. As outlined above, it is not accepted that the Complainant resigned from her position.

The evidence given by Ms S around the maternity benefit application form only serves to demonstrate the lack of due care and attention the Respondent, as the Complainant’s employer showed for its obligations towards the Complainant. Ms S simply passed it onto her accountant for progressing when she ought to have taken the time to read the form as it was addressed to the employer.

When the Complainant gave Ms S the application form, it is noted that Ms S did not respond to the Complainant that the Respondent was not her employer as she resigned from her position. Instead, Ms S said she was simply too busy and passed it onto her accountant. Similarly, in the repeated reminder text messages from the Complainant, the Respondent fails to clarify that she was no longer an employee based on her own resignation. Instead it can only be concluded, together with her repeated evidence at the hearing that the Respondent hid behind her accountant, that it was only around this time did the Respondent realise the impact of her decision to dismiss the Complainant because of her pregnancy. I am satisfied that the Respondent choose to pass the responsibility onto the accountant rather than address it in the circumstances where the Respondent had previously unilaterally decided to dismiss the Complainant from her employment.

This is further evidenced by the lack of response from the Respondent to the Complainant’s letters of July and August 2020 , which she again states she passed on to her accountant. It is noted a further letter from the Complainant’s solicitor was left unanswered by the Respondent also. This can only be concluded as further evidence that Respondent was fully aware the Complainant had been dismissed on the grounds of her pregnancy but choose not to take steps to resolve it.  

It was put to Ms S under cross examination that she ceased the opportunity to dismiss the Complainant from her employment on 12 March 2020  as a result of her pregnancy which was not rebutted by her. In fact, she repeatedly stated in her evidence that in hindsight she would have done things different which only serves to acknowledge the Complainant’s claim.

It was put forward in evidence by the Complainant that there were approximately 10 employees employed by the Respondent with no other pregnant employee. No evidence was tendered by the Respondent as to whether any other employee was dismissed at this time by way of comparator.

For completeness, the Respondent sought to put forward evidence in relation as to who the correct employer was but from its own evidence it is clear there was a change of name and venue from the where the Complainant was first employed. However, it is clear the owner of the business together with the nature of the business remained the same and therefore, no issue arises as to Complainant’s length of service or who was the correct employer in this case is.

It is also noted the manner in which the Respondent choose to defend this case fell short of what is acceptable. The Respondent, in its submission, repeatedly, called the Complainant the wrong name but of particular note, was the serious and unsubstantiated allegations made by the Respondent as against the Complainant in her dealings with the Department of Social Protection.

In conclusion, I find the Complainant has established a prima facia case of discriminatory dismissal on the grounds of pregnancy and the Respondent treated the Complainant less favourably as a result of her pregnancy.  

Victimisation

Section 74 (2) of the Employment Equality Act 1998 -2015sets out a list of what constitute a “protected act” which can give rise to victimisation:

“(a) sought redress under this Act or any enactment repealed by this Act for discrimination or for a failure to comply with an equal remuneration term or an equality clause (or a similar term or clause under any such repealed enactment),

(b) opposed by lawful means an act which is unlawful under this Act or which was unlawful under any such repealed enactment,

(c) given evidence in any criminal or other proceedings under this Act or any such repealed enactment, or

(d) given notice of an intention to do anything within paragraphs (a) to (c).”

 Having carefully considered the evidence presented by the Complainant, I do not find that she committed a protected act within the meaning of Section 74 (2) of the Act.

Conditions of Employment

Section 8 (1) and Section 8 (6) of the Act provides: 

“ 8.—(1) In relation to—

(a) access to employment,

(b) conditions of employment,

(c) training or experience for or in relation to employment,

(d) promotion or re-grading, or

(e) classification of posts,

an employer shall not discriminate against an employee or prospective employee and a provider of agency work shall not discriminate against an agency worker.”

“(6) Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee or prospective employee in relation to conditions of employment if, on any of the discriminatory grounds, the employer does not offer or afford to that employee or prospective employee or to a class of persons of whom he or she is one—

 (a) the same terms of employment (other than remuneration and pension rights),

(b) the same working conditions, and

(c) the same treatment in relation to overtime, shift work, short time, transfers, lay-offs, redundancies, dismissals and disciplinary measures, as the employer offers or affords to another person or class of persons, where the circumstances in which both such persons or classes are or would be employed are not materially different.”

Section 1 (4) of the Act does state:

“(4) In this Act a reference to “conditions of employment” does not include remuneration or pension rights.”

Having carefully considered the evidence presented by the Complainant, I do not find that she was discriminated on the grounds of gender in relation to her conditions of employment within the meaning of Section 8 (1) of the Act.

Due to the sensitive nature of the facts of this case, the decision has been anonymised.

Having carefully considered the evidence of both parties , I find the Complainant’s claim for dismissal on the grounds of pregnancy well founded. I am awarding compensation in the sum of €15,000 to the Complainant for the Respondent decision to discriminate as against the Complainant by dismissal on the grounds of gender, namely her pregnancy. This sum is arrived at not only to compensate the Complainant for the discriminatory treatment but also to dissuade the Respondent from discriminatory acts into the future. 

I find that the Complainant was not victimised by the Respondent.

I find that the Complainant was not discriminated against on the grounds of condition of employment by the Respondent.  

Equality-Pregnancy- Dismissal