Complainant

Respondent

Parties

Niamh Gargan

Quest Brook Limited

Representatives

Richard Grogan and Associates

Represented by Management

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00040472-001

18/10/2020

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

CA-00040472-002

18/10/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00040472-003

18/10/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00042685-001

10/02/2021

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

CA-00042685-002

10/02/2021

The complainant commenced working for the respondent on September 2nd 2019.  She was a picker in a warehouse from which greeting cards were distributed.  She worked for approximately 20 hours a week and was paid €12.00 per hour.  On March 21st 2020, the complainant informed the manager in the warehouse that she was pregnant and that she had been advised by her doctor to take two weeks off.  However, on March 27th, the warehouse closed due to Covid-19 lockdown restrictions.  The complainant didn’t contact her employer when the business re-opened and they didn’t contact her because she was pregnant.  It is the complainant’s case that she was dismissed because of her pregnancy.  The complainant had her baby on November 11th 2020 and she started a new job five months later.  On the date of the hearing of this complaint, the managing director said that the complainant was not dismissed and that her job remains open for her to return to.

In breach of the Terms of Employment (Information) Act 1994, the complainant said that she never received a written statement of her terms and conditions of employment.  She also claims that, in breach of section 5 of the Payment of Wages Act 1991, her employer has made an illegal deduction from her wages by failing to pay her from June 8th 2020.

The complainant said that she did not receive a written statement of her terms and conditions of employment.

The respondent did not dispute the complainant’s claim that she was not issued with a statement of her terms and conditions.

There is no dispute between that parties that the complainant was not issued with a statement of her terms and conditions of employment and that the respondent did not comply with section 3(1) of the Terms of Employment (Information) Act in relation to this matter.

Ms Hand referred to the Labour Court decision in the case of Megan Hayes Kelly and Beechfield Private Homecare[1], where Ms Hayes Kelly claimed that her employer was in breach of the Terms of Employment (Information) Act because there were omissions and errors in her contract of employment.  In his determination on the case, the Chairman, Mr Haugh, considered the errors and omissions to be “at the serious end of the spectrum” and awarded the maximum of four weeks’ pay in redress.  As the failure to issue any statement of terms and conditions of employment must be considered to be more serious than issuing an imperfect statement, I must follow the authority of the Labour Court and make the maximum award in the case under consideration here.

I decide that this complaint is well founded and I direct the respondent to pay the complainant compensation of €1,000, equivalent to approximately four weeks’ pay, based on an hourly rate of €12.00 per hour for around 20 hours per week.  This award is made by way of compensation for a breach of a statutory entitlement and is non-taxable.

Details on the Forms

On October 16th 2020, on behalf of the complainant, Mr Grogan’s office sent an EE2 form to the respondent, as provided for under section 76 of the Employment Equality Act.  An employee may send an EE2 form to their employer to seek information regarding a claim that discrimination may have occurred.  The complainant alleged that she had been discriminated against on the grounds of gender, marital status and family status.  On the form, she wrote:

On 8 June when my partner, Tadhg Finnegan asked why I was not being called back to work Joe Sweeney said to him, “well, she’s pregnant.”

On the form, in response to possible reasons for this treatment, the complainant wrote, “I am pregnant.”

On the form she submitted to the WRC on October 18th 2020, the complainant again claimed that she was discriminated against on the ground of gender, civil status and family status.  She claimed that the discrimination had been continuing since June 8th 2020 when she was not called back to work at the same time as other employees following a lifting of some of the Covid-19 restrictions which had been in place since the middle of March.

In a page setting out details of her complaint, the complainant said that she discovered that she was pregnant in March and on March 21st, she phoned the operations director to tell her that she had been advised to take two weeks off work.  The complainant alleges that the director responded that this was “awful” and that the owner “would be raging” and would probably not want her back.

The complainant wrote that, on Monday, June 8th 2020 at 7.00pm, the owner, Mr Sweeney, who has since died, phoned her partner, Mr Finnegan and told him that he no longer needed him in the business.  She said that Mr Finnegan asked Mr Sweeney if this also applied to the complainant.  The complainant made the same remark that she made on her EE2 form and she alleged that Mr Sweeney replied, “well, she’s pregnant.” 

On a second form that she submitted to the WRC on February 10th 2021, the complainant said that she “was not called back to work like others were, ongoing from 18th October 2020, continuing breach.”  She claimed again that the discrimination was on the grounds of gender, civil status and family status.

Summary of the Written Submission

On February 22nd 2021, Ms Hand sent a submission to the WRC, setting out the complainant’s case.  She alleged that the complainant worked as an office administrator, although I understand that she was a picker in the warehouse and that occasionally, she did administration.  In her submission, Ms Hand said that there were six people originally working in the business:

1.      The former owner and managing director, the late Mr Joseph Sweeney;

2.      Mr Sweeney’s son, also called Joseph, who is now the managing director;

3.      The operations manager, Ms Anna Dunleavy;

4.      The complainant, Ms Niamh Gargan;

5.      Ms Gargan’s partner, Mr Tadhg Finnegan;

6.      One other person named Kevin.

In April 2020, Mr Finnegan and Kevin were called back to work.  They decided not to return and, in his evidence, Mr Finnegan said that the government restrictions were in place and the business was not an essential service.  The complainant alleges that she was not called back because she was pregnant.  The complainant has had her baby and Ms Hand said that she is now in a very vulnerable position regarding her employment.  Ms Hand said that, on the date of the submission, February 22nd 2021, she was on maternity leave.

The submission is clear that the claim of discrimination is a claim on the gender ground, arising from the fact that the complainant was pregnant in March 2020 and that she did not return to work when others returned in June 2020.  Ms Hand said that the complainant relies on section 6(2A) of the Employment Equality Act which provides that, where a woman is treated less favourably in accessing employment or in her conditions of employment or in the termination of her employment that is in any way related to her pregnancy, she may be able to claim a remedy for unlawful discrimination on the gender ground.

The complainant has suffered from direct discrimination on the gender ground.  Having discovered in March 2020 that she was pregnant, she was advised to take two weeks off work.  She claims that she rang her manager who told her that the owner “would be raging and that he probably would not want her back.” 

Ms Hand’s submission states that non-essential businesses were closed from March 27th due to Covid-19.  On April 29th, the manager contacted Mr Finnegan and the other employee, Kevin, and asked them to come in to work.  It appears that Mr Finnegan did not return to work and on June 8th, Mr Sweeney contacted him and told him that his services were no longer required.  This is when Mr Finnegan is alleged to have asked what the situation was regarding the complainant’s job and Mr Sweeney is alleged to have replied, “well, she’s pregnant.”

Summary of the Case Law

Ms Hand referred to the following legal precedents in support of the complainant’s case:

A Director of Marketing v A Telecom and Electronic Communications Support Company[2]

The employee is this case was made redundant two weeks after disclosing her pregnancy to her employer.  She was awarded compensation of €55,000.

Trailer Care Holdings Limited v Healy[3]

In this decision of the Labour Court, it was held that women are afforded special protected from the beginning of pregnancy until the end of maternity leave.

Assico Assembly Limited v Corcoran[4]

Here, the Labour Court held that the legislation and case law has determined that there must be exceptional grounds for dismissing a woman who is pregnant or on maternity leave. 

Gardiner v Mercer Human Resources Consulting[5]

The complainant in this case was awarded €15,000 for the distress she suffered as a result of discrimination on the grounds of gender and family status.  The respondent was also ordered to,

“…put in place a mechanism to ensure employees who are absent from work on any sort of statutory leave, but maternity leave in particular, are advised of any issues which have a potential to impact on their employment …”

Dekker v Stichting Vormingscenrum voor Jong Volwassenen[6]

In this decision of the Court of Justice of the European Union, the Court set out that pregnancy is a uniquely female condition and less favourable treatment due to pregnancy constitutes discrimination on the gender ground.  Ms Hand submitted, that, since this decision, the protection afforded to pregnant women in the workplace has been strengthened and is now expressly guaranteed by Article 23 of the Charter of Fundamental Rights of the European Union.

The Burden of Proof

Considering the shifting nature of the burden of proof which is set out at section 85A of the 1998 Act, Ms Hand referred to the decision of the Labour Court in Mitchell v the Southern Health Board[7].  She referred also to the decision of the Court in Hallinan and Moy Valley Resources[8] where the Court stated that,

(a)    The complainant must establish that she is covered by the protected ground;

(b)   It must be established that the specific discriminatory treatment occurred;

(c)    It must be established that the treatment was less favourable than treatment that was or would be afforded to a person not covered by the relevant discriminatory ground.

Ms Hand submitted that the complainant has shown an inference of discrimination and that the burden of proof now shifts to the respondent.  She argued that the motive of the respondent is irrelevant, because discrimination is “usually covert and often rooted in the subconscious of the discriminator.”[9]

Redress

Ms Hand argued for the maximum amount to be awarded in redress.  She referred to the following precedents in support of this argument:

Gacek v Pagewell Concessions (Ilac) Limited[10].

The complainant in this case was found to have been discriminated against on the grounds of race, gender and family status and was awarded €55,000.

The Complainant’s Response to the Respondent’s Submission

Ms Hand referred to the submission sent to the WRC by the respondent on April 5th 2021.  The respondent said that that the owner, the late Mr Sweeney, was concerned about the complainant having to lift heavy boxes.  Ms Hand said that there is a provision in Statutory Instrument 299 of 2007, the Safety, Health and Welfare at Work (General Application) Regulations, at regulation 150, which requires an employer to carry out a risk assessment, or to put in place protective or preventive measures to alleviate the risk of injury to a pregnant or breastfeeding employee.

Ms Hand also referred to section 18 of the Maternity Protection Act 1994, and the possibility that a pregnant employee who is at risk of harm or injury, may be granted leave if it is not possible to move her to a different job.  In this regard, Ms Hand referred Statutory Instrument 20 of 1995, the Maternity Protection (Health and Safety Leave Remuneration) Regulations 1995.  Ms Hand submitted that there is no way that the complainant would have known that she was expected to contact her employer about returning to work.  Her case is that she was dismissed and the employer’s assertions do not comply with what was required to put the complainant on health and safety leave.

Evidence of the Complainant, Ms Niamh Gargan

In March 2020, Ms Gargan said that she phoned the manager, Ms Dunleavy, to tell her that she was pregnant and that she had been advised to take two weeks off.  She said that Ms Dunleavy replied, “Joe will be raging.”  She said that she then congratulated her.  In April, she said that her partner, Mr Finnegan, got a text message from Ms Dunleavy, asking him about returning to work, but she didn’t get a text message.  In June 2020, the owner, Mr Sweeney, phoned Mr Finnegan, and told him that he was not required to return to his job after the Covid-19 restrictions were lifted.  The complainant said that Mr Finnegan asked Mr Sweeney about her job, to which Mr Sweeney is alleged to have replied, “well, she’s pregnant.”

The complainant said that it was her intention to return to work.  After her sick leave in March 2020, she was on the Pandemic Unemployment Payment or “PUP.” 

Evidence of Mr Tadhg Finnegan

Mr Finnegan said that he started working in the company on the same day as Ms Gargan.  In April 2020, Mr Sweeney said that he got a text message from Ms Dunleavy, asking him to go back to work.  He said that, as the business wasn’t an essential service, he felt that the government’s regulations were that he should not return to work.  He said that Mr Sweeney senior phoned him on June 8th 2020 and told him that, due to economic changes, he wouldn’t be needed in the company.  He said that he asked Mr Sweeney about the complainant and that he replied, “well, she’s pregnant.”

On April 5th 2021, in response to the allegations set out in the complainant’s forms, the respondent’s managing director, Mr Sweeney sent a submission to the WRC.  The submission states that the complainant was employed as a picker in the warehouse, for approximately 20 hours a week.  The job involved using a pallet truck, lifting wooden pallets and continuous lifting and pulling heavy boxes.  Most of the time, the complainant worked alone in the warehouse.  Occasionally, she did administrative work, but this only amounted to one or two hours a month. 

When the complainant phoned the manager on March 21st to tell her she was taking two weeks off, this wasn’t a problem.  At no point did the manager say, “Joe would be raging and that he probably would not want her back.”  Ms Dunleavy said that Mr Sweeney senior might be uncomfortable with the complainant working alone in the warehouse and lifting heavy boxes and, given the nature of the job, it might not be a safe environment for a pregnant woman. 

In his submission, Mr Sweeney said that most of their employees returned to work after the lockdown, but the complainant did not return.  He said that she wasn’t called back and she didn’t contact anyone to discuss coming back.  He said that they didn’t contact her because she was pregnant and she couldn’t do the job in a safe way because of her pregnancy.  In their submission, Mr Sweeney said that they assumed that the complainant would return to work when she was ready and that her job is still available for her.

Evidence of the Managing Director, Mr Joseph Sweeney

Mr Sweeney said that around August 2019, his father met the complainant and Mr Finnegan at a trade fair.  They worked for a different company at the time and they knew the greeting card business.  They both started working for his father’s business on the same day, September 2nd 2019.

Mr Sweeney said that his father and Ms Dunleavy worked in the warehouse and the complainant’s job was to support them.  He and Mr Finnegan and another employee, Kevin, were on the road in vans, delivering the cards to customers.

A couple of weeks into the lockdown in March 2020, Mr Sweeney said that customers were ringing the company looking for stock and they had to go back to work.  In early April, he said that he went back on the road delivering orders.  He was driving a work van and he had no problem with Garda checkpoints when he explained that he was delivering stock.  He covered the north-west in addition to Mr Finnegan’s area of Cavan and Monaghan.  Mr Sweeney said that his father and Ms Dunleavy covered for the complainant in the warehouse.

Mr Sweeney said that Kevin and Mr Finnegan refused to return to work in April 2020, although Kevin returned in June.

Evidence of the Operations Director, Ms Anna Dunleavy

Ms Dunleavy said that she had worked with the complainant and her partner in the past.  She said that the company that she ran with the late Mr Sweeney was short-staffed, because two people had left.  She said that they made a full-time job for Mr Finnegan in the hope that he could build up the business.  The complainant was a part-time employee, working mornings.  Her job was to pick the orders and to have stock ready for the vans. 

Ms Dunleavy recalled that she was driving back from Dublin on Sunday, March 21st when the complainant phoned her.  She said that her recollection of the conversation is very different from the complainant’s.  The complainant told her that she was pregnant and she congratulated her and said that “Joe wouldn’t be happy about her lifting heavy boxes.”  She said that they talked about the risk of Covid-19.  The complainant said that she was going to be out of work for two weeks.  At that stage, Ms Dunleavy’s understanding was that the complainant would be out for two weeks and she said that she finished the call asking her to let her know how she was getting on.

On March 27th, Ms Dunleavy said that the country went into a full lockdown and the business closed.  Two weeks later, because of the demand from customers, she went into the warehouse to start preparing deliveries to go out again.  She said that she and Mr Sweeney senior went out doing deliveries in one of the vans.  She said that he contacted Mr Finnegan and the other driver, but they didn’t come back to work.  She said that she also sent them text messages.  She said that she didn’t contact the complainant.  Ms Dunleavy said that she was doing the work in the warehouse herself and because of the fact that the complainant was pregnant, she thought that Covid-19 was a high risk for her.  She said that they figured that, when she was ready, the complainant would contact them.  She didn’t hear any more from the complainant until this complaint was submitted to the WRC in October 2020.  Ms Dunleavy said that if there had been a conversation with the complainant, they could have done something.

The Legal Framework

The overarching legal framework on pregnancy in the workplace is set out in Council Directive 92/85/EEC, published in October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding (“the Pregnancy Directive”).  Article 10 of the Directive, under the heading, “Prohibition of dismissal,” at paragraph 1, provides that,

“Member States shall take the necessary measures to prohibit the dismissal of workers, within the meaning of Article 2, during the period from the beginning of their pregnancy to the end of the maternity leave referred to in Article 8(1), save in exceptional cases not connected with their condition which are permitted under national legislation and/or practice and, where applicable, provided that the competent authority has given its consent.”

Article 2 defines a pregnant worker as a worker “who informs her employer of her condition, in accordance with national legislation and/or national practice.”

Section 6(1) of the Employment Equality Act 1998 – 2015 (“the 1998 Act”) provides a definition of discrimination: 

“…discrimination shall be taken to occur where –

(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in sub-section (2), in this Act, referred to as the ‘discriminatory grounds’…”

At sub-section (2)(a), the “the gender ground” islisted as one of the nine discriminatory grounds.   

A new sub-section, (2A) was inserted into the 1998 Act by the Equality Act 2004.  This provides that less favourable treatment of a pregnant employee is to be considered as discrimination on the gender ground:

“(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.”

It is the complainant’s case that she was discriminated against on the gender ground, when she was not called back to work when the respondent’s business opened up in April and June 2020, after the initial Covid-19 lockdown.  She claims that she was dismissed because she was pregnant.

The Burden of Proof

At the hearing, Ms Hand referred to the burden of proof which is set out at section 85A of the Employment Equality Acts 1998 – 2015, and which was inserted into the 1998 Act by the Equality Act 2004:

“85A – (1) Where in any proceedings, facts are established by or on behalf of a complainant, from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.”

The effect of this section in the law is to place the burden of proof in the first instance on a complainant, to establish facts, which, on an initial examination lead to a presumption that discrimination has occurred.  Referred to as “prima facie” evidence, in the context of this adjudication hearing, the onus is on the complainant to show that, based on the primary facts, she was dismissed because she was pregnant.

We know from paragraph 1 of the Pregnancy Directive that a pregnant employee may be dismissed only “in exceptional cases not connected with their condition.”  The burden of proving that a dismissal is not pregnancy-related is therefore shifted to a considerable degree, because pregnancy is the primary fact.  At paragraph 2 of the Directive, the responsibility for establishing that a dismissal is for a reason other than pregnancy is clearly set out:

“If a worker, within the meaning of Article 2, is dismissed during the period referred to in point 1, the employer must cite duly substantiated grounds for her dismissal in writing[.]”

Consideration of the Facts

On March 21st 2020, the complainant told her manager that she was pregnant and that she was taking two weeks off.  She didn’t submit a medical certificate to her employer, and, at the hearing, she gave no evidence that she was sick.  The business then closed due to Covid-19 restrictions and it started opening up again in April.  The complainant was about two months pregnant at that stage.  She was not called back to work and she didn’t contact her employer about coming back.  She remained out of work on the PUP.  She had no further contact from her employer during her pregnancy and she submitted this complaint to the WRC on October 18th 2020.  She had her baby about a month later.

Based on these primary facts, that the complainant was pregnant, and that she was not called back to work when other employees were called back, I am satisfied that she has discharged the level of proof required to shift the responsibility to the respondent to show that discrimination did not occur. 

Consideration of the Respondent’s Evidence

The complainant’s evidence is that, in March 2020, when she informed Ms Dunleavy that she was pregnant, Ms Dunleavy remarked, “Joe will be raging” and she said that he probably wouldn’t want her back.  In her evidence, Ms Dunleavy said that she did not respond to the news of the complainant’s pregnancy with this remark, but that she said that Mr Sweeney would be concerned about her lifting heavy boxes.  I observed at the hearing that Ms Dunleavy is a reasonable person and I accept her evidence that she did not say “Joe will be raging” or that he wouldn’t want the complainant back at work as has been alleged. 

The complainant was about four weeks’ pregnant when Covid-19 erupted, and there was a degree of concern and some confusion nationally, about the risk of the virus, particularly for pregnant women.  Although no evidence was presented that she was ill, I find that it was reasonable for the complainant to take time off and to remain out of work in the early months of the pandemic.  From the perspective of a replacement income, the complainant said that she claimed the PUP, which, at €350 per week, was a 30% uplift on her weekly income of €240.  Apart from the risk to her health, from a financial perspective, it made little sense for her to return to work.  The website, gov.ie shows that in September 2020, for employees earning between €200 and €300, the PUP was reduced to €250, still €10.00 per week more than what the complainant would have earned if she was working.  The complainant gave no evidence that she wanted to return to work after March 2020, and she didn’t contact her employer about the possibility of returning.  From a financial perspective, I can understand why she made no contact with her employer about returning to work before her baby was born in November 2020.

Having made this finding, I wish to address the responsibility of the employer, who, having been informed by their employee that she was pregnant, had a duty to explore the possibility of an alternative role or to consider placing her on health and safety leave.  It is the complainant’s case that she was not called back to work because she was pregnant.  The respondent confirmed this evidence and explained that she was not called back because the job of stock-picker, involving lifting and shifting, might have been a risk to her health.

In a company with just six employees, including the directors, the complainant was the only employee working in the warehouse as a stock picker and it seems unlikely that an alternative role was available for the duration of her pregnancy.  For an employer and an employee in these circumstances, section 18 of the Maternity Protection Act 1994, provides that an employee who cannot do their normal job during pregnancy, may take health and safety leave.  The employer must pay normal wages for the first 21 days of such leave, and from then on, health and safety leave is paid by the Department of Social Protection.  For an employee earning less than €300 per week, health and safety leave is €94.50 per week.  At just over a quarter of the complainant’s PUP income, this was certainly an unattractive option; however, regardless of the disadvantage that would have accrued to the complainant if she had been placed on health and safety leave, the respondent had a duty to discuss it with her.

In her evidence at the hearing of this complaint, Ms Dunleavy said that she thought that Covid-19 was a high risk for the complainant and that she thought that, when she was ready, the complainant would contact her.  The next contact they had from the complainant was in October 2020, when the WRC sent them a copy of her complaint form. 

The issue for me to decide is, was the complainant discriminated against when her employer didn’t contact her to discuss her options during her pregnancy and, was she dismissed because she was pregnant?

Findings

Discrimination is unfair or prejudicial treatment of an individual based on their membership of a group.  In the case we are considering, the complainant alleges that she was the subject of unfair treatment because, at the time she was not called back to work between April and October 2020, she was a pregnant woman.

I accept the evidence of the respondent that the complainant was not called back to work because her job involved lifting and moving heavy products in the warehouse and because of the perceived risk of Covid-19 to pregnant women.  I’m also satisfied that, if she had wanted to return to work, the complainant would have contacted her employer to arrange to return.  It is my view that the respondent’s explanation for not calling the complainant back to work was reasonable at the time, and that no unfair or prejudicial treatment arose.  However, I also find that the respondent failed to properly communicate with the complainant during this time, and that they should have consulted with her regarding her options.  In her evidence, Ms Dunleavy said that, if the complainant had contacted them, they could have sorted something out.  I am satisfied that no disadvantage or unfairness arose because of this negligence but, by failing to keep her informed about her options, the complainant was discriminated against as a pregnant woman.

In October 2020, when she submitted this complaint to the WRC, the complainant was eight months pregnant.  Her baby was born in November and, in her evidence, she said she started work for a new employer five months later.  She did not contact the respondent with a view to returning to work for them. 

Section 28 of the Maternity Protection Act 1994 provides that an employee who is on maternity leave and who is contemplating returning to work at the end of their maternity leave, must notify their employer of their intention in writing:

(1) Subject to sections 14B(11) and 16B(10), entitlement to return to work in accordance with section 26 or to be offered suitable alternative work under section 27 shall be subject to an employee who has been absent from work while on protective leave in accordance with this Act having, not later than four weeks before the date on which she or he expects to return to work, notified in writing (or caused to be so notified) the employer or, where the employee is aware of a change of ownership of the undertaking concerned, the successor, of her or his intention to return to work and of the date on which she or he expects to return to work.

It is clear from this section that the entitlement to return to work after maternity leave is subject to and employee providing written confirmation of her intention to return four weeks before the planned return date.  The complainant did not comply with this requirement and she did not telephone her employer about her date of return, which, in all likelihood, would have been acceptable as an alternative to written confirmation.

No evidence has been submitted to show that the complainant was dismissed and no date of dismissal has been identified.  When the complainant’s partner, Mr Finnegan, was dismissed in June 2020, the complainant was not dismissed.  The evidence of the managing director, Mr Sweeney, is that the complainant’s job is available to her and that it remains open to her to return to work. 

Conclusion

Taking all the circumstances into account, and, considering the evidence of both sides at the hearing of this complaint, I find that some discrimination occurred when the respondent did not consult with the complainant after she went absent from work in March 2020, regarding her option to take health and safety leave.  I am satisfied that the complainant was not dismissed and that no discrimination arises from her decision not to return to her job with the respondent at the end of her maternity leave.

I decide that this complaint is well founded and I direct the respondent to pay the complainant compensation of €1,000, for failing to offer her the option of taking health and safety leave when she was absent from work during the Covid-19 pandemic.

Referring to section 5(1) of the Payment of Wages Act 1991, the complainant submitted that, when she was not called back to work on June 8th 2020, her employer made an illegal deduction from her wages.  Ms Hand claims that the complainant was earning €300 per week, although no evidence in the form of a payslip was presented at the hearing.  The complainant’s evidence is that she was paid an hourly rate of €12.00 for working between 20 and 25 hours per week.

It is the respondent’s case that the complainant was not called back to work because of the risk to her health due to having to lift heavy boxes and because of the risk of Covid-19 to pregnant women.  As she was not working and claiming the PUP, the respondent’s position is that no wages were due.

The Relevant Law

Section 1 of the Payment of Wages Act 1991 (“the Act”) provides a definition of “wages:”

[W]ages in relation to an employee, means any sums payable to the employee by the employer in connection with his employment, including -

(a)  any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment, or otherwise, and,

(b)  any sum payable to the employee upon the termination by the employer of his contract without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice.

The remainder of this section deals with the issue of expenses which are not wages and is not relevant to the complainant’s case.  The definition of wages is broad and encompasses “any sum payable” to an employee related to their job, whether that payment is governed by a contract or otherwise.

Section 5(1) of the Act provides that an employer may not make a deduction from an employee’s wages, except in certain circumstances:

(1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—

(a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

(b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

(c) in the case of a deduction, the employee has given his prior consent in writing to it.

Sub-sections (2) to (5) of section 5 are not relevant to this complaint.  Sub-section (6) provides that, to ground a claim under the Act, wages must be properly payable:

(6) Where—

(a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

(b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee,

then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.

The complainant was paid no wages because she was absent from work.  The first issue for consideration is whether she was legally entitled to be paid wages when she was absent.  Her case is that she was not called back to work in June 2020 and she was not called back at any time up to the birth of her baby in November 2020 and afterwards, until February 10th 2021, when she submitted her second complaint to the WRC under the Payment of Wages Act.

Wages Properly Payable

The concept of a deduction from wages was addressed at the former Employment Appeals Tribunal (EAT) in Sullivan v the Department of Education[11]:

“…the Tribunal considers that if an employee does not receive what is properly payable to him or her from the outset then this can amount to a deduction within the meaning of the 1991 Act.  We take ‘payable’ to mean properly payable.”

The 1991 Act does not define the concept of “properly payable” andI must reach a conclusion on this by reference to objective criteria and with deference to previous findings of the Labour Court or other authorities.

The complainant went absent from work in March 2020, when she was in the early stages of pregnancy in the early days of the pandemic.  When her partner, Mr Finnegan, was asked to return to work in April, she was not asked to return and she expressed no desire to return.  Mr Finnegan did not go back to work either; however, this has no material relevance for the complainant’s case.  The complainant argues that, when Mr Finnegan was dismissed on June 8th 2020, she was not asked to return to work.  However, she made no argument that she was dismissed and I find that she was not dismissed.  The complainant made no contact with her employer after March 2020 until she submitted these complaints to the WRC on October 18th 2020.  The evidence of the operations manager, Ms Dunleavy, is that they were waiting for her to contact them.  This makes sense in the context of the pandemic and the fact that the complainant was pregnant and at a greater risk compared to others.  It is regrettable that the complainant did not contact Ms Dunleavy before she decided to submit these complaints to the WRC, as the issues that she complained about could have been easily resolved.

For the duration of her absence, the complainant made no claim for wages.  She said that she claimed the PUP, which was paid to employees who were laid off from work because of the pandemic.  We can assume that, as the complainant made a claim for and was paid the PUP, that she met the criteria for this payment, which was that an employee had to be laid off from work due to the pandemic.  Although the complainant was never issued with a contract of employment, she made no argument that her employer was not entitled to lay her off from work, and I must assume therefore, that the lay-off arrangement was acceptable to her.

Findings

It was reasonable for the complainant to remain out of work from March 2020 and for the following months during which the country was at the height of the Covid-19 pandemic.  While she was not at work, she claimed the PUP.  The design and introduction of this wage support scheme recognised the fact that many businesses would not be trading, or that many employees would not be able to attend work because of health or childcare reasons and employers would not be in a position to pay wages.  Implicitly, the introduction of the scheme acknowledged that an employer has no obligation to pay wages during a period of lay- off.

This issue was addressed by the Labour Court in the case of William P Keeling & Sons Unlimited Company and Barbara Ciszewska[12].  Ms Ciszewska was a fruit picker and her contract provided for the possibility that she may be laid off if there was no work in that seasonally impacted business.  The Court noted that Ms Ciszewska’s complaint was under the Payment of Wages Act and the issue for consideration was not the fairness or otherwise of the decision to lay her off, but whether there had been an illegal deduction from her wages.  Considering Ms Ciszewska’s claim, the Labour Court concluded that,

“There is no provision in the Payment of Wages Act that requires that wages be paid in periods of lay-off.”

Conclusion

Having considered this matter and having reviewed the case law, it is clear to me that, during a period of lay-off, when an employee does no work for his or her employer, wages are not “properly payable,” and the failure to pay wages is not an illegal deduction.

I have concluded that the respondent did not make an illegal deduction from the complainant’s wages and that, on this basis, there has been no contravention of section 5 of the Payment of Wages Act 1991.  I decide therefore, that this complaint is not well founded.

CA-00040472-001, Compensation for a breach of section 3 of the Terms of Employment (Information) Act 1994:   €1,000

CA-00040472-002 and CA-00042685-002, Compensation for a breach of section 8 of the Employment Equality Act 1998:  €1,000

CA-00040472-003 and CA-00042685-001:  No award is made under the Payment of Wages Act 1991

Total compensation:  €2,000

This award is compensation is for the infringement of the complainant’s statutory rights and is not subject to deductions for PAYE, PRSI or USC.

Discrimination, gender, pregnancy ground, pandemic, deductions from wages, statement of terms and conditions of employment