Complainant

Respondent

Parties

Tina Mary  Lukose

Riada Care Ltd T/A Glenashling Nursing Home

Representatives

Bernadette Stenson Irish Nurses and Midwives Organisation

Claire Bruton BL instructed by Patrick Cunningham PB Cunningham & Co

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-00054767-001

30/01/2023

The Complainant began her employment with the Respondent as a staff nurse on a two-year fixed term contract on 4 August 2020. She worked 30 hours per week and was paid €18 per hour. She stated that the Respondent did not offer her a permanent position when her contract ended because she was pregnant at the time of its expiry.

The Complainant began her employment with the Respondent as a staff nurse on a two-year fixed term contract on 4 August 2020. She became pregnant in January 2022 and made the Respondent aware of same in due course. When she approached the Respondent on 23 July 2022 seeking to book annual leave in September 2022, she was made aware for the very first time that the Respondent did not intend to offer her a permanent contract when her fixed term contract expired on 4 August 2020. She stated that their refusal to do so was attributable to her pregnancy because a permanent contract had always been offered to every other employee that she was aware of whose fixed term contract expired.

Out of desperation, on 3 August 2022, the Complainant emailed the Respondent seeking a two-month extension of her contract to bring her up to the start of her pending maternity leave. The Respondent subsequently offered her a new fixed term contract which began on 9 August 2022 and ended on 2 October 2022. She ultimately had no choice but to accept this offer given her advanced pregnancy at the time and her view that it would be difficult to source alternative employment elsewhere.  Her employment ceased on 2 October 2022 when her second fixed term contract expired.

As set out in the preamble above, the Respondent withdrew from the hearing prior to hearing the Complainant’s evidence and did not present any direct evidence in relation to the complaint

The Applicable Law

In the case of Dekkar v. Stichting voor Jong Volwassenen (VJV-Centrum) [1990] ECR 1-3941, the European Court of Justice held that since pregnancy is a uniquely female condition, less favourable treatment on the grounds of pregnancy constitutes discrimination on the grounds of gender. 

Since the decision in Dekker, the protection afforded to pregnant women in employment has been strengthened considerably in the case law of the CJEU and in the legislative provisions of the European Union. Equality on grounds of gender is now expressly guaranteed by Article 23 of the Charter of Fundamental Rights of the European Union. Article 33.2 of that Charter also incorporates the prohibition of dismissal on grounds of pregnancy established in jurisprudence of the CJEU. It provides: -

·         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.

The Charter is now incorporated in the Treaty on the Functioning of the European Union (the Lisbon Treaty) and has the same legal standing as all preceding and current Treaties. It can thus be properly regarded as part of the primary legislation of the European Union. The jurisprudential principle that discrimination on grounds of pregnancy constitutes direct discrimination on grounds of sex is now codified in Directive 2006/54/EC on the Principle of Equal Treatment of Men and Women (the Recast Directive). This Directive provides, at Article 2. 2 (c), that any less favourable treatment of a woman related to pregnancy or maternity leave within the meaning of Directive 92/85/EEC constitutes unlawful discrimination for the purpose of that Directive. Directive 92/85/EEC (the Pregnancy Directive) provides a comprehensive legal framework in which special protection is afforded to the safety health and welfare of pregnant women in employment. Article 10 of the Directive is of particular and far-reaching significance. It provides: -

·         In order to guarantee workers, within the meaning of Article 2, the exercise of their health and safety protection rights as recognised under this Article, it shall be provided that:

·         1.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;

·         2. 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;3.Member States shall take the necessary measures to protect workers, within the meaning of Article 2, from consequences of dismissal which is unlawful by virtue of point 1.

The underlying rationale for the prohibition of dismissal on grounds of pregnancy is discernible from recital 15 of the Directive which provides: -

·         “Whereas the risk of dismissal for reasons associated with their condition may have harmful effects on the physical and mental state of pregnant workers, workers who have recently given birth or who are breastfeeding; provision should be made for such dismissal to be prohibited”

The importance of this latter provision, in deciding cases within the ambit of the Equal Treatment Directive, has been emphasised by the CJEU on a number of occasions, such as in case C-232/09Danosa v LKB Lizings SIA[2011] CMLR 45, at 60, where the Court said: -

·         “It is precisely in view of the harmful effects which the risk of dismissal may have on the physical and mental state of women who are pregnant, have recently given birth or are breastfeeding, including the particularly serious risk that pregnant women may be prompted voluntarily to terminate their pregnancy, that, pursuant to Article 10 of Directive 92/85, the EU legislature provided for special protection for women, by prohibiting dismissal during the period from the beginning of pregnancy to the end of maternity leave”

The Court then continued at par 61 of the report: -

·         “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”

These cases and the applicable law make it clear that pregnant women are to be afforded special protection from adverse treatment, and in particular from dismissal. Equally it is clear that where a pregnant woman is dismissed the employer must prove, using cogent and credible evidence, that the dismissal was in no sense whatsoever related to her pregnancy. 

The Burden of Proof 

Section 85A of the Act provides for the allocation of the probative burden as between the Complainant and the Respondent in cases coming with its ambit. This section provides, in effect, that the Complainant bears the initial burden of proving facts from which discrimination may be inferred. If those facts are established, and if they are regarded as of sufficient significance to raise an inference of discrimination, the onus passes to the Respondent to show that the principle of equal treatment was not infringed in relation to the Complainant. For reasons already stated above, 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 the onus of proving the absence of discrimination firmly on the respondent.

Analysis of the facts

The facts in this case are that the Complainant was pregnant when her fixed term contract with the Respondent expired and that, unlike any other employee who was employed on such a contract, she was not offered a permanent contract of employment when her fixed term contract ended. I am thereforesatisfied that there is prima facie evidence that the Complainant was discriminated against on the gender ground. The burden of proof, thus, shifts to the Respondent to prove that this treatment of the Complainant was not related to her pregnancy.

As the Respondent did not present any evidence at the hearing, they were unable to discharge the burden of proof and I therefore find that the Complainant was discriminated against on the gender ground. 

The Law:

Section 82 (4) of the Act states as follows:

(4) The maximum amount which may be ordered by the Director General of the Workplace Relations Commission by way of compensation under subsection (1)(c) or (1)(f) shall be—

(a) in any case where the complainant was in receipt of remuneration at the date of the reference of the case, or if it was earlier, the date of dismissal, an amount equal to the greatest of—

(i) 104 times the amount of that remuneration, determined on a weekly basis,

(ii) 104 times the amount, determined on a weekly basis, which the complainant would have received at that date but for the act of discrimination or victimisation concerned, or

(iii) €40,000,

or

(b) in any other case, €13,000. 

Analysis

As set out above, I find that the Complainant has established a prima facie case of discrimination on the gender ground, which the Respondent failed to rebut. 

In calculating my award, I have regard to the case of Ms Svetlana Grodzieka v. Ultra Fresh Services Limited [EDA 232] where the Labour Court held that “the dismissal of a woman due to pregnancy or maternity leave is a breach of a fundamental right guaranteed directly by an EU Directive.  As such, it must be regarded as among the most egregious breaches of employment law.”  The Court further stated that: “No argument has been put to the Court that the appropriate compensation for the Complainant in the instant case should be anything less than the maximum allowable under s. 82(4) of the Acts”. As no such argument was also presented in the instant case, I order the Respondent to pay compensation to the Complainant in the amount of €56,160, namely 104 weeks’ pay.