Complainant

Respondent

Parties

Orla Howe

Colm Kelly, Healy Crowley Ahern

Representatives

David Pearson, J W O'Donovan LLP

David Gaffney, Gaffney Solicitors

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-00050625-001

16/05/2022

The Respondent is the principal solicitor and sole practitioner in a solicitor’s practice based in Kerry.  The Complainant, who is a solicitor, worked in the Respondent’s practice from 2 January 2020 until 17 December 2021 when her employment was terminated for reason of redundancy.

The Complainant disputes the validity of her redundancy and contends that she was dismissed because of her pregnancy.

The Complainant submits as follows:

The Complainant was employed as a solicitor with the Respondent firm from 2 of January 2020.  The Complainant remained a full-time employee of the Respondent up to date she received notice on 19 November 2021 that her employment with the Respondent was being terminated. Her employment with the Respondent ceased with effect from 17 December 2021.

The atmosphere in the Complainant’s workplace changed in August of 2021 once she had informed the principal of the Respondent firm of her pregnancy.  The Complainant firmly believes that she was not dismissed by reason of redundancy. Instead, the Complainant believes that she was discriminated against on the grounds of her gender, owing to her pregnancy and ultimately dismissed due to her pregnancy and/or pending maternity leave. 

The Complainant submits that the attitude and behaviour of the Respondent towards her changed drastically after she notified him of her pregnancy in August 2021. Her workload reduced, she was excluded from meetings, and her requests in relation to Covid-19 safety measures and working from home were ignored.

The Complainant contends that, prior to her informing the Respondent of her pregnancy, she would attend weekly/bi-weekly file review meetings and cash flow review meetings. Office matters and plans would also be discussed at these meetings. The Complainant’s inclusion in these meetings diminished and ultimately ceased after she informed the Respondent of her pregnancy.  In addition,  the Complainant was not kept informed of plans for the office, particularly about the office move. Prior to informing the Respondent of her pregnancy, the Respondent engaged with the Complainant in relation to her request to work from home. These discussions ended upon notification of her pregnancy and all requests to work from home were ignored. In addition, the Respondent refused to address the Complainant’s concerns around Covid-19 safety measures in the office, thereby putting the health and safety of the Complainant at risk. The Complainant submits that the Respondent is in breach of Directive 92/85/EEC 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 who are breastfeeding. 

The Complainant’s contends that her workload decreased considerably once she informed the Respondent of her pregnancy.  From October 2021 on, no new files were passed on to the Complainant whereas before she made the Respondent aware of her pregnancy, all new property sale and purchase files and mortgage/re-mortgage files were passed on to her.  In addition, the Respondent took over the Complainant’s existing workload and/or files without her knowledge and without first notifying her. Upon taking over these files, the Respondent took client’s instructions and worked on these files without informing the client or keeping the Complainant informed of any updates. 

Significantly, at no time in the period between being notified of the Complainant’s pregnancy and deeming her position redundant, did the Respondent have any discussions with the Complainant around who would take over her workload while she was on maternity leave and/or what would happen to her files. 

The Respondent stated in consultations surrounding the redundancy that the firm was going through a “financially difficult time”. Attendance memos of these discussions/consultations show that the Complainant was hired during a time the Respondent deems as financially difficult.  In addition, the Respondent, despite experiencing financial difficulty, sought to hire a new solicitor between the dates of November 2020 and March 2021.  The Respondent also hired a new member of staff in November 2021, notwithstanding the fact that the discussions around the Complainant’s redundancy were occurring at that time and her role was ultimately deemed redundant on 19 November 2021. 

Furthermore, none of the proposals and/or alternatives to redundancy suggested by the Complainant were considered or trialled prior to the termination of her employment. 

Despite the Complainant’s dismissal “by reason of redundancy”, the Respondent has continued to communicate to clients that the Complainant is currently on maternity leave (i.e., still an employee of the office).  The Complainant submits that this misrepresentation is not only untrue but is damaging to her professional reputation. 

Case Law

Section 6(1) of the Employment Equality Act (as amended) (“the Act”) provides:

“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 subsection (2) (a) the gender ground is listed as one of the nine discriminatory grounds. 

Section 6(2A) of the Acts (as inserted by s.4(b) of the Equality Act 2004) provides:

“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 is treated, contrary to any statutory requirement, less favourable than another employee is, has or would be treated”.

The provisions of the Act reflect the special protections afforded by the EU against discrimination on grounds of pregnancy and/or maternity leave.

Equality on the grounds of gender is also expressly guaranteed by Article 23 of the Charter of Fundamental Rights of the European Union. Article 33.2 of the Charter also prohibits dismissal on grounds of pregnancy:

“To reconcile family and professional life, everyone shall have the right to protection from dismissal for a reason connected with maternity and the right to paid maternity leave and to parental leave following the birth or adoption of a child”.

Directive 2006/54/EC on the Principle of Equal Treatment of Men and Women (“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".

In addition, Council Directive 92/85 Pregnancy Directive, the "Pregnancy Directive" provides for two types of substantive protection for employees: first, health and safety protection and, secondly, protection from less favourable treatment on the grounds of pregnancy.

In O'Brien v Persian Properties trading as O'Callaghan Hotels, DEC-E2012-010, the Equality Officer relied on the decision of the Court of Justice in Dekker v Stichting Vormingscentrum voor Jong Volwassenen, 1990 E.C.R. I-03941 in confirming that pregnancy is "a special protected period" and pointed out that the Labour Court in Trailer Care Holdings Limited 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".

In Dekker v Stichting Vormingscentrum voor Jong Volwassenen, 1990 E.C.R. I-0394 the CJEU held:

“It should be noted that only women can be refused employment on grounds of pregnancy and such a refusal therefore constitutes direct discrimination on grounds of sex.  A refusal of employment on account of the financial consequences of absence connected with pregnancy must be regarded as based, essentially, on the fact of pregnancy. Such discrimination cannot be justified on grounds relating to the financial loss which an employer who employed a pregnant woman would suffer for the duration of the maternity leave.”

Direct evidence of Orla Howe, Complainant

The Complainant said that she had regular Teams meetings with the Respondent but that the level of meetings slackened off when she was notified of her redundancy.

The Complainant said that she emailed the Respondent on 17 August 2021 informing him of her vaccination status.  A copy of the email was exhibited at the hearing.  In the email, the Complainant wrote that she would be fully vaccinated by the end of September but in the meantime, she wished to work from home as she was considered a high-risk pregnancy as she did not feel safe in the office due to issues including poor ventilation and distancing in meeting area. 

The Respondent informed her that he could not do anything about ventilation as the windows were painted shut.

The Respondent met with the Complainant on 1 November 2021 to discuss his letter of 21 October 2021 in which he informed the Complainant that her position was at risk of redundancy.    The Complainant said that she listened while the Respondent went through the contents of the letter.  There was no discussion about conveyancing.  She understood that probate was lagging. The Complainant suggested that she could reduce her hours or take on some family law work as an alternative to redundancy.  She also discussed the possibility of staying on until her maternity leave when she would be entitled to statutory maternity benefit.

The Complainant said that after the meeting, no new files were handed to her even though she could see new sales advice notes, which in the past, would have let to the assignment of files to her.

The Complainant said that after the meeting of 1 November 2021, the Respondent would have worked on some of her current files which would not have happened in the past.  The Complainant said that when her clients phoned the office, they were not passed on to her even though she had a work phone at home to which the office could redirect her calls.  She felt side-lined from October 2021. 

The Complainant said that the assigning of work to her was not discussed at the meeting of 1 November.  The Complainant also said that an office move was in train at that time, but it was never discussed with her. Furthermore, she was not told that the Respondent was going to employ an additional staff member.  It was only when she attended the office, that she was informed that a new employee had joined.

The Complainant said that she had not further meetings with the Respondent regarding the proposed reorganisation.  The Complainant wanted to do a full file handover but there was no discussion about that.

The Complainant confirmed that she was not offered an appeal.

Cross-examination of the Complainant

The Complainant confirmed that she did not give the Respondent official notification of her pregnancy. 

The Complainant confirmed that she was facilitated in working from home and she was never compelled to go into the office.  The Complainant also confirmed that she attended a wedding on 20 August 2021 and that there were approximately 50 people at the wedding.  She confirmed that she attended both the church and the hotel and sat at a table with other people during the wedding meal.  She further confirmed that she danced at the wedding.

The Complainant confirmed that she did not return to work after her second vaccination.  She further confirmed that she did not raise a grievance about safety of the office environment in the context of Covid and her pregnancy.

Direct evidence of Claire Mannion, former employee of the Respondent

Ms Mannion said that she worked for the Respondent until November 2022 in the role of receptionist/legal secretary/legal assistant.  She recalled a conversation with the Respondent in August 2021, in which he referred to the Complainant’s pregnancy and said that “he did not see that coming”.  Ms Mannion said that the Respondent asked her if she was considering having any more children.

Ms Mannion said that she was given an instruction by the Respondent in or around October 2021 to start working on notice of sales which came into the office.  She would not have done this type of work previously. 

Ms Mannion said that after the Complainant’s departure, she issued correspondence fairly regularly saying that the Complainant was on maternity leave. In this regard, she referred to a letter to a client of the Complainant’s which was issued after her departure and where it was written “as you may know Orla is now on maternity leave”.

Cross-examination of Ms Mannion

The Respondent’s solicitor put it to Ms Mannion that there was only one letter in which it was stated that the Complainant was on maternity leave and the reason for this was that the client was a friend of the Complainant.

Concluding Remarks

The Complainant’s mortgage was drawn down in July 2020 so the Respondent could have looked at the possibility of placing the Complainant on the EWSS in late 2021 as then would not have affected her mortgage.  The Respondent never considered lay-off event though it was provided for in the employee handbook. 

It is clear that the Respondent’s financial challenges existed for a considerable length of time given that the draft annual account for the year ended 31 March 2021 were available in May 2021.  However, the Respondent did not take any action to reduce costs until after the Complainant informed him of her pregnancy in August 2021.  Despite the Respondent’s accountant’s suggestion that he should consider a range of options to effect cost savings, including closure of the Cahirsiveen office; increased profitability through improved office methodologies; relocation of the business and staff redundancies, the Respondent focussed only on the Complainant.  In fact, he recruited a new member of staff despite his accountant’s advice to reduce headcount.

The Respondent submits as follows:

Everything was going well prior to Covid. Turnover reduced significantly as a result of Covid which resulted in a dramatic reduction in profitability.  While the number of instructions fell off, what really hit hard was the increase in the length of time it took to get through work and also the delays in the functioning of state bodies, particularly the Probate Office.  This led to delay in the receipt of payment from clients.  Furthermore, the Respondent experienced a significant hike in professional indemnity insurance for the business.

The Respondent was conscious of the fact that the Complainant was in the early stages of employment and was seeking to buy her own house.  If one availed of the Government supports for staff that meant that that staff member could potentially not obtain their mortgage for their property.  As a result, the Respondent did not apply for State support in respect of the Complainant.  The Respondent paid her a full contractual salary during the period. The Complainant was the only employee for whom the Respondent did this.

The Respondent was acutely aware of fee income and office outgoings and his accountant’s advice was to look at all areas of the business to see where cost savings could be achieved.  The Respondent’s accountant recommended looking at all areas of the practice, and in particular, the four areas below: - 

 •            Closure of the second office

•             Investment in new systems and technologies

•             Move the main office to a different location

•             Review of personnel

The Respondent considered each area suggested by his accountant.  He decided not to close the second office.  He did, however, outsource dictation requirements which has been of benefit to the firm and has freed up secretarial staff.  The Respondent also decided to move office.  This has had a positive impact on the business and has created a more professional impression for clients. The Respondent looked at all options in or around September 2021 onwards but ultimately concluded that he could subsume the Complainant’s work himself.

Submissions in respect of specific allegations made by the Complainant

1 (a) - That the Complainant’s requests to work from home were ignored.

At the outset of the pandemic in March 2020, the Respondent immediately facilitated the Complainant to work from home.  The Respondent set up the Complainant’s PC and provided her with a printer.  The Respondent also made arrangements to enhance the Complainant’s home WiFi and provided her with a home phone.  The Respondent and his staff, including the Complainant, met via Zoom on a regular basis.  All these measures, the cost of which was borne by the Respondent, resulted in a seamless transfer to working from home for the Complainant.  At no stage was the Complainant requested to work in the office during 2020.

In June 2020, the Respondent introduced a Covid policy for the business and conducted a full risk assessment.  The purpose of the risk assessment was, insofar as practicable, to reduce any possible exposure to staff and clients to Covid. The Respondent was never advised by the Complainant that her concerns in relation to attending the workplace were in relation to her not being vaccinated. The Respondent was unaware as to her vaccination status. The Complainant merely advised him that she did not believe that attending the workplace during 2021 would be safe. At no stage did the Complainant provide the Respondent with a medical certificate from her doctor in support of her concerns, nor did the Respondent request one.  The Respondent introduced the following measures to reduce the risk to staff:

·         All clients were required to knock on the door and wait outside.

·         Clients were met outside in the car park as much as possible.

·         All clients were required to conduct hand sanitation.

·         Separate pens were purchased specifically for clients to avoid cross contamination.

·         Clients were asked to fill out a Covid questionnaire.

During 2021, the Respondent did request the Complainant to call to the office.  She repeatedly indicated that she could not come to the office as the office was still high risk.  The Respondent explained to the Complainant all the steps that had been taken to mitigate the risk.  The Respondent contends that the Complainant informed him that she could not work in the office during 2021 because she felt client declarations regarding Covid were not sufficiently reliable.  Therefore, she felt, despite all the steps introduced by the Respondent, it was unsafe.  The Complainant did attend the office on a couple of occasions each month and the rest of her working time was conducted on a remote basis.  

The Respondent facilitated the Complainant’s continuing work from home and every suggestion made by the Complainant in relation to matters of a safety or work nature were always fully considered by him. While this was not ideal for the practice, the diminished level of work made it manageable. 

The Respondent did not become aware that the Complainant was pregnant until sometime around mid-August 2021. On no occasion did the Respondent compel her to come to the workplace either before or after the Respondent was made aware of her pregnancy. 

1(b) No plan regarding the takeover of files

The Respondent asserts that since the Complainant did not make him aware of when her maternity leave would be commencing, it was not necessary to have a discussion or plan regarding the takeover of files.  It was assumed that the Respondent was going to take them over.  The Respondent monitors all files in the office and therefore there was no need to have a “plan” in relation to some period in time that the Respondent was unaware of. The Respondent asserts that their usual remote meetings continued.   

1(c) Being left out of weekly meetings

The Respondent disputed that the Complainant was left out of weekly meetings.  He asserted that, on the contrary, they continued to have regular meetings and go through the Complainant’s work list.  These meetings were held via MS Teams and Zoom.  The Respondent submits that the last such meeting was on 14 October 2021.  The Respondent provided a schedule of the meetings which were held during the year (which is supported by diary entries).  The Respondent says that he wrote to the Complainant on 21 October 2021 in relation to her position being at risk of being made redundant.  The Respondent says that there is no doubt that having a conversation of that nature is challenging and certainly did make the relationship feel a little awkward at times. 

1(d) Information about future plans  

The Respondent says that he continued to speak to the Complainant in relation to all relevant office matters at all times up until she was issued with the “at risk” letter on 21 October 2021 and subsequently issued with a notice of redundancy. During that period, their communications were largely of a consultative nature.

1(e) Significant change in workload

The Respondent asserts that there was no change in workload from August to October 2021.  

1(f) Taking calls without the Complainant’s knowledge

The Respondent asserts that the Complainant was not in the office on a regular basis which meant that it was easier for him to answer telephone calls.  Likewise, clients would call to the office and the Respondent would deal with them.  It was a natural consequence of being in the office.  The Respondent was in constant communication with the Complainant over Teams and email and kept her up to date on files. 

2(a) – Initial Hire of 2020

The Respondent hired the Complainant in good faith in January 2020.  Unfortunately, the business was badly impacted by Covid particularly during 2021 and there was no indication of any increase of business in the future.  Therefore, the business could not support the Complainant’s continued employment and the Respondent took over the Complainant’s work.

2(b) – New solicitor Nov 2020

The Respondent was looking at various options for the business and in particular how he could increase probate work.  In order to be able to attract probate work, the Respondent considered launching a probate outsourcing business.  This would have involved conducting probates for other solicitors on an outsourced basis. To that end, the Respondent decided to test the market.  Therefore, in November 2020 the Respondent advertised for a probate solicitor on a part time basis.  The Respondent conducted interviews, and looked at the figures, but ultimately decided not to pursue the matter further.

2(c) – New staff member Nov 2021

The Respondent was conscious that the firm was falling short on its regulatory compliance obligations.  The Respondent engaged the Institute of Legal Research and Standards to conduct a compliance review in 2021. It was clear from that review that additional compliance resources were needed.  Further, it was also clear that if the Respondent wanted to reduce his insurance premiums, he needed to have excellent compliance systems in place.  

Accordingly, the Respondent hired a staff member to primarily address matters of compliance.  That individual also covered reception on occasion and subsequently assisted with some probate matters on an administrative basis. The Complainant only did conveyancing work. Engaging this member of staff released a significant burden on the Respondent as regards compliance matters and allowed him to focus on fee earning work. The hiring of this member of staff has contributed to significant reduction in the Respondent’s insurance premium.

2(d) Yearly review

The Respondent notes the Complainant’s comments regarding the yearly review.  He would assert that he did mention the importance of fee income targets to the Complainant after that review.  It was very clear what such targets were, and the Respondent provided the Complainant with details of those targets. During the period of 1 February 2021 to 30 September 2021, the Complainant’s fee income was insufficient to justify her continuing employment despite her best efforts.  

2(e) Decision was made prior to letter of 21st of October 2021

The Respondent asserts that there was absolutely no decision made by him 21 October 2021 regarding the Complainant’s redundancy. The very purpose of the consultation period and meetings with the Complainant was to consider all options and to afford the Complainant the opportunity to suggest any viable alternatives that could possibly obviate the need to terminate her employment by reason of redundancy.  In no way did the level of admin support provided to the Complainant diminish. The Complainant had access to a full-time legal executive to assist her with files.  New work may not have been passed on from the end of October 2021, but that was because the Respondent was unsure at the time what decision he was ultimately going to make.

2(f) Consideration of reduction of hours

The Respondent considered numerous options, including a reduction in hours, but ultimately decided that he was in a position to absorb all of the Complainant’s work and the role was no longer required.

2(g) Failure to look at alternatives

The Complainant had offered alternatives such as reduced working or taking over probate.  Unfortunately, this was not a work viable situation as the overall level of business did not justify it. As the business model is that of utilising secretarial staff and systems to assist with probate matters, there was no requirement to have additional probate assistance. 

3. Breach of Directive 92/85/EEC

The Respondent rejects this complaint and asserts that he was very accommodating to the Complainant.

4. The Respondent continues to represent to clients that the Complainant is an employee

The Respondent disputes this assertation and submits that he has made it abundantly clear to clients that the Complainant is no longer an employee at the firm.

Summary

The Respondent have managed the business without the Complainant since the termination of her employment and without the need to replace her.  The business continues to have no need to engage a second solicitor.  The Respondent very much regrets that he was not in a position to retain the Complainant in employment. Covid had a significant impact on the business.

In addition, the Respondent has introduced new working methods as suggested by his accountant, (in particular outsourcing of his dictation) which has had a positive impact.  Further, as suggested by his accountant, the office move to a new location has helped.  The Respondent took the advice of his accountant to restructure and reorganise the business which included reducing the level of overhead costs and regularising compliance processes.  

The decision to terminate the Complainant’s employment was genuine and was in no way whatsoever related to her pregnancy. It is submitted that the process and the ultimate decision made by the Respondent was objectively justified, was procedurally fair, was reasonable in all the circumstances, and was in adherence with natural justice. There was meaningful engagement with the Complainant during the consultation period wherein the potential restructuring of the practice was discussed openly with the Complainant. The Complainant’s position has not been replaced. 

Direct evidence of the Respondent

The Respondent said that he was informed of the Complainant’s pregnancy in mid-August.  The Respondent said that the Complainant was never compelled to come into the office, even though he would have liked her to come in a couple of days a week.  The Respondent said that he did not remember the Complainant ever mentioning screens, but he did recall that she raised an issue about ventilation.  The Respondent said that the Complainant had an office of her own and he suggested that she meet clients in the carpark.

The Respondent referred a letter from his accountants dated 21 September 2021 concerning the financial situation of the practice. 

The Respondent referred to the meeting of 1 November 2021 which he said was difficult but cordial.  Although the Complainant suggested alternatives to redundancy, he felt that the best option would be for him to take on all the existing work himself, which at the date of the hearing, he was still doing.

He felt that family law was not an option as the lead in time was way too long to have an immediate beneficial impact on the finances and he did not think that there was sufficient work to justify reduced hours.

The Respondent said that the new employee was a compliance officer, not a solicitor.  He felt that her recruitment contributed to the reduction in his insurance premium.  The Respondent explained that it was a regulatory requirement and that if he did not invest in compliance, he would not be able to stay in business.

In relation to the letter of 14 January 2022, where he wrote that the Complainant was on maternity leave, he said that it was for specific clients who were personal friends of the Complainant and he wanted to explain why he was dealing with the file and not the Complainant.

Cross-examination of the Respondent

The Respondent confirmed that he did not carry out a formal risk assessment in August 2021 when he had a pregnant employee.  He confirmed that there were no screens in place and the windows were painted shut.  He said that he did not refer to ventilation in his Covid documentation as he had been advised not to do the impossible.

The Respondent confirmed that the letter from the accountant of September 2021 was based on a conversation with him.

The Respondent confirmed that his draft accounts were completed in May 2021.  In response to a question asking why he had only raised the matter of finances in September after the Complainant informed him that she was pregnant, the Respondent said that he did so because he was facing his insurance renewal.  The Complainant’s solicitor pointed out that the insurance renewal was due in December.

The Respondent confirmed that his accountant had suggested that closure of the Cahirsiveen office would result in savings of between €20,000 to €30,000.  The Respondent said that he had not taken this option as the main probate work was carried out in Cahirsiveen.  He also confirmed that he did not consider making one of the administrative staff redundant.

The Respondent confirmed that he had not reduced staff numbers, but he contended that he had reduced costs.

The Respondent said that he planned to place a heavy emphasis on conveyancing.  He accepted that he did not mention this in his letter of 21 October 2021 to the Complainant nor at the meeting on 1 November 2021.  He confirmed that he did not share a document relating to fee income with the Complainant at the meeting on 1 November 2021, even though it was available to him.

The Complainant’s solicitor asked the Respondent why the document on the fee income was based on an eight-month period and not on a full year.  The Respondent said that it was a relevant period.

The Respondent confirmed that his understanding of the purpose of the meeting of 1 November 2021 was to explain his letter of 21 October 2021 and to have a chat with the Complainant.

The Respondent confirmed that he addressed the Complainant’s suggestions in his letter of 19 November 2021.  He said that the did not meet again after 1 November 2021 as the conversation on that date had been difficult and he did not want to raise the Complainant’s anxiety levels.

The Complainant’s solicitor asked the Respondent why he did not consider keeping the Complainant on until the commencement of her maternity leave in February 2022.  The Respondent replied that the insurance cost was looming, and he could not consider the cost of an additional solicitor.  The decision was purely financial.  Furthermore, he did not get the impression that that was a central part of the Complainant’s proposal.

The Complainant’s solicitor pointed out that the cost of a practicing cert was €2,300 in 2021 yet the Respondent paid the Complainant an ex-gratia payment of €3,000 on the termination of her employment.

The Complainant’s solicitor asked the Respondent why he did not see that he had an obligation to come up with alternatives to redundancy.  In reply, the Respondent said that that was not the purpose of the meeting.  He asked the Complainant to meet with him so that he could hear her proposals.

The Complainant’s solicitor asked the Respondent if he ever considered a lay-off as an alternative to redundancy in line with the provisions of the employee handbook.  The Respondent said that it was not something which the Complainant raised.

The Complainant’s solicitor asked the Respondent why he did not tell the Complainant about the new employee.  In reply, the Respondent said that he did not do so because it was not about fee earning work and the did not discuss all business decisions with the Complainant. 

The Complainant’s solicitor pointed out that compliance and regulatory work is an integral part of a solicitor’s role.  Why, therefore, did the Respondent not ask the Complainant to help out with compliance.  The Respondent replied that he did not do so because the Complainant was hired as conveyancing solicitor and there was no guarantee that the role was long-term.  He felt that the conveyancing role should not be role of fee earner.

The Complainant’s solicitor asked the Respondent why he did not give the Complainant the opportunity to have a discussion about the role.  At the same time as he was letting the Complainant go, he was hiring someone else.  The Respondent said that it was an administrative role, and the Complainant never suggested it.  He said that he never hid the role from her.  The Complainant’s solicitor asked the Respondent when he told the Complainant about the new role.  The Respondent said that he did not tell her.

The Complainant’s solicitor suggested that from the beginning of October 2021, new purchases were no longer forwarded to the Complainant as would have been the case in the past.  The Respondent said that Ms Mannion’s recollection was incorrect and that he only wanted her to concentrate on the initial admin work. A lot of the initial work in conveyancing is not legal but administrative.

The Complainant’s solicitor noted that the Respondent shared his proposal for hiring a probate solicitor with the Complainant but not the appointment of a compliance person. 

In response to a question from the Adjudication Officer, the Respondent confirmed that he did not explore the possibility of placing the Complainant on the EWSS.

Concluding Remarks

The Respondent asserts that there was absolutely no link between the termination of the Complainant’s employment and her pregnancy.  Her position that made redundant in order to effect cost savings. 

The Complainant was employed by the Respondent from 2 January 2020 until 17 December 2021 when she was dismissed by reason of redundancy. The matter for consideration in this case is if the Complainant’s employment was terminated as a result of a genuine redundancy situation, or if, as claimed by the Complainant, the Complainant’s employment was terminated as a result of her pregnancy.

Section 6 of the Employment Equality Act 1998 (as amended) (the Act) defines discrimination as follows: “Discrimination for the purposes of this Act

(1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances 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 subsection (2) (in this Act referred to as the “discriminatory grounds”) which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

(a) that one is a woman and the other is a man (in this Act referred to as “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.

The burden of proof under the Act is set out in section 85A (1) in the following manner: “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.”  This means that the Complainant must establish primary facts upon which the claim of discrimination is grounded and then the burden of proof passes to the Respondent. In Determination EDA0821 McCarthy v Cork City Council the Labour Court pointed out that at the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the facts proved. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.

In Melbury Developments v Arturs Valpeters EDA 0917 the Labour Court, whilst examining the circumstances in which the probative burden of proof operates stated that a complainant "must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn". It added that "the burden of establishing the primary facts lay fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule”.

The entire period of pregnancy and maternity leave constitutes a special protected period as outlined in the European Court of Justice decisions in Webb v EMO Air Cargo (UK) Ltd [1994] ECR 1-3567, Brown v Rentokil Ltd [1998] ECR 1-04185 and Dekker v Stichting Vormingscentrum [1990] ECR 1-3941. It is well established that discrimination based on pregnancy comes within the remit of gender-based discrimination. This is expressly provided for in section 6(2A) of the Employment Equality Act, as quoted above. At para 61 in Dekker, the Court of Justice has made it clear that pregnancy is a uniquely female condition and for that reason any adverse treatment of a woman on grounds of pregnancy is direct discrimination on ground of her gender:

“During that period, Article 10 of Directive 92/85 does not provide for any exception to, or derogation from, the prohibition on dismissing pregnant workers, save in exceptional cases not connected with their condition, provided that the employer gives substantiated grounds for the dismissal in writing.”

There is no dispute that the Respondent was aware of the Complainant’s pregnancy when her employment was terminated.  It is well established that the dismissal of a pregnant person at any stage of employment is sufficient to raise an inference of discrimination on the grounds of gender. The Labour Court in Wrights of Howth Seafood Bars Limited v Dorota Murat EDA1728 found as follows: “…the special protection afforded to pregnant woman against dismissal in European law requires that where a pregnant woman is dismissed the employer must bear the burden of proving that the dismissal was grounded on exceptional circumstances unrelated to pregnancy or maternity. Hence, in every case in which pregnancy related dismissal is in issue, the factual combination of the dismissal and the woman’s pregnancy must, in and of itself, place onus of proving the absence of discrimination firmly on the Respondent.”

Consequently, the probative burden in this case is on the Respondent to prove that the Complainant was not discriminated against, and it is for the Respondent to adduce persuasive evidence that there were other exceptional circumstances unrelated to her pregnancy and its consequences justifying her dismissal. It is not sufficient for an employer to simply assert that a dismissal was for other unrelated reasons.

It is the Respondent's contention that the Complainant was dismissed by reason of redundancy due to the financial difficulties which the firm was facing.  From documentation adduced in evidence by the Respondent, it is clear that the Respondent was aware of his financial situation when his draft accounts for the financial year ended 31 March 2021 were produced in May 2021.  It is somewhat surprising that he waited until September 2021 to contact his accountant seeking advice on dealing with his finances.  The temporal proximity between the Complainant making the Respondent aware of her pregnancy via email on 17 August 2021 and the Respondent’s decision to address his financial situation in September 2021 is stark.  I am not persuaded by the Respondent’s evidence that he sought to address his financial situation at that time due to his impending insurance premium payment given that the payment did not fall due until December 2021.

I note the Respondent’s assertion that he met with the Complainant on 1 November 2021 to explain his “at risk” letter of 21 October 2021 and hear her alternatives to the proposed redundancy.  He did not appear to consider that he should also consider alternatives to the proposed redundancy.  It is a core tenet of dismissal law in Ireland that an employer should act in a reasonable manner whenever the dismissal of an employee is contemplated.  This onus to act reasonably places an obligation on the employer to consider all alternatives to redundancy; it is not reasonable to expect the employee to make all the running in this regard.  Accordingly, I am at a loss to understand why the Respondent did not explore the option of placing the Complainant on the EWSS as an alternative to redundancy given that he had previously availed of the scheme.  Furthermore, I do not understand why the Respondent did not consider the option of placing the Complainant on lay-off as provided for in the employee handbook. 

I note that, although the Respondent expressed concern about the state of his finances, he did not actually reduce his head count when he terminated the Complainant’s employment but instead, he recruited a new member of staff.  I fail to understand why the Respondent did not discuss the proposed compliance position with the Complainant to see if she was interested in undertaking the role as an alternative to redundancy.  The fact that the Respondent did not make the Complainant aware of very fundamental matters which affected the business such as the recruitment of a new staff member and the proposed office move, would seem to suggest that he did not see a future for the Complainant within the business and did not seriously consider alternatives to redundancy.

I note that in the Respondent’s minutes of the meeting of 1 November 2021 with the Complainant he wrote: “We talked about the possibility of keeping Orla on until her maternity in February and then when she was on maternity, I wouldn’t be paying a salary and that would have the same effect.  I said I would consider that, but I had to take into account the practising cert outlay.  I would have to see if that would work overall.”  However, as pointed out by the Complainant’s solicitor, and not contradicted by the Respondent, the cost of a practicing cert was €2,300 in 2021 yet the Respondent paid the Complainant an ex-gratia payment of €3,000 on the termination of her employment.

I find the evidence of the Respondent’s former employee Ms Mannion in relation the assignment of additional work to her in October 2021 which had previously been undertaken by the Complainant to be particularly persuasive in reaching a conclusion that the Respondent did not seriously consider any alternative to terminating the Complainant’s employment.  It is particularly telling that the Respondent’s representative did not challenge this aspect of Ms Mannion’s evidence in cross-examination.

Having considered the above I am satisfied that no genuine redundancy situation existed at the time of the Complainant’s dismissal. I find that the Complainant’s dismissal was tainted with discrimination and the Respondent did not proffer sufficient evidence to show that the dismissal was not related to the Complainant’s pregnancy.

It is well established both on the European and national level that an employer must show that the dismissal was on exceptional grounds not associated with pregnancy. Having regard to the totality of the evidence before me I am of the view that the Complainant has made out a prima facie case of discrimination on the gender ground. The Complainant’s pregnancy was a significant factor contributing to her dismissal and I am satisfied that she has made out a prima facie case of discriminatory dismissal.

The Respondent has failed to discharge the burden of proof which it bore in that regard. I find that the grounds for dismissal as advanced by the Respondent do not amount to exceptional circumstances not related to pregnancy.

I will now turn to the Complainant’s complaint that the Respondent did not conduct a health and safety audit as required under Directive 92/85/EEC.  I note the Complainant’s evidence that she was never compelled to attend the office and that she was facilitated in working from home.  Accordingly, I am of the view that the Respondent’s failure to carry out a health and safety audit did not have any material impact on the Complainant’s wellbeing.  I find, therefore, that this complaint is not well founded.

Complaint of discriminatory dismissal

Pursuant to section 82 of the Act, I order the Respondent to pay the Complainant €30,000 compensation in relation to her dismissal. I have arrived at this award having regard to the effects of discrimination on the Complainant and also having regard to the requirement pursuant to Article 17 of the Framework Directive that the sanction be “effective, dissuasive and proportionate”.

Complaint of discrimination on the gender ground

I find that the complaint of discrimination on the gender ground in relation to Directive 92/85/EEC is not well founded. 

Pregnancy related dismissal