Complainant

Respondent

Parties

Naomi  Hanlon

Emer McGrath

Representatives

Ms. Michelle Loughnane, Mullany Walsh Maxwells Solicitors

Ms. Mary Fay BL, instructed by  MacCarthy Johnston Solicitors

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-00061351-001

01/02/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00061351-002

01/02/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00061351-003

01/02/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00061351-004

01/02/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00061351-005

01/02/2024

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

CA-00062404-001

26/03/2024

The Complainant commenced employment on 4th August 2020. The Complainant was a full-time, permanent employee, in receipt of an average weekly wage of €855.00. The Complainant’s employment was terminated by the Respondent on 31st December 2023.

On 1st February, and 26th March, 2024 the Complainant referred the present set of complaints to the Commission. Herein, she alleged that her dismissal was discriminatory on the grounds of gender. In particular, the Complainant submitted that the Respondent dismissed the Complainant as a consequence of her informing them that she was pregnant. The Complainant also alleged a number of breaches in respect of her working time arrangements.  By response, the Respondent submitted that the Complainant was dismissed on the grounds of misconduct and that her dismissal was in no way influenced by the Complainant’s pregnancy. In addition to the same, the Respondent denied the statutory breaches raised by the Complainant.

A hearing in relation to this matter was convened for, and finalised on, 27th May 2024. This hearing was held in person, in the Commission’s Dublin offices. Both parties issued extensive submissions in advance of the hearing. Said submissions were contested and expanded upon in the course of the hearing. The Complainant gave evidence in support of her complaints while the Respondent, a natural person, gave evidence in defense. All evidence was given under oath or affirmation and was opened to extensive cross-examination by the opposing side.

At the outset of the hearing, the Adjudicator raised the fact that the complaint form listed two natural persons as the Respondent to the compliant. Following a brief discussion in relation to this matter, it was agreed that the correct Respondent is as listed above, and the form was amended accordingly.

No issues as to my jurisdiction to hear the complaints were raised at any stage of the proceedings. Following an enquiry from the Adjudicator, no application to anonymise this decision in its published form was raised by either party.

In evidence, the Complainant stated that she was employed as a nanny in the Respondent’s household. The Complainant commenced her employment on 4th August 2020 on a part-time basis, with the employment becoming full-time on 14th September 2020.

From the outset, and for the vast majority of her employment, the Complainant stated that she enjoyed a positive and friendly relationship with the Respondent. The Complainant stated that she had an excellent professional and personal relationship with all members of the household. In this respect she stated that she met the Respondent and her family on numerous social events, and that the family attended her wedding in May 2023.

On 2nd October 2023, the Complainant attended a performance review with the Respondent. The meeting itself was positive, with no issues raised regarding the Complainant’s conduct or performance. At the conclusion of the meeting, the Complainant informed the Respondent that she was pregnant and that she had been feeling ill as a result of the same. In evidence, the Complainant stated that the Respondent’s demeanour changed at this moment. The Respondent enquired as to the Complainant’s plans now that she was pregnant. The Complainant was somewhat confused by this question and enquired as to what the normal approach in such matters was. By response, the Respondent stated that the normal process is for leave to commence two weeks prior to the expected date of birth. The Respondent further enquired as to the Complainant’s plans following the birth. At this point, the Complainant had not considered the same as she had been unwell for the last number of weeks. In evidence, the Complainant stated that this meeting felt awkward and was not representative of typical affectionate and close relationship that the parties had enjoyed to this point. The Complainant stated that from this date on, the relationship between herself and the Respondent changed irrevocably.

On 20th November 2023, the Complainant sought permission from the Respondent to inform the children in the household of her pregnancy. When this occurred, the Complainant noted that the Respondent sought to quickly change the topic of conversation and did not appear to have any wish to discuss her pregnancy in this manner.

On 30th November, the Complainant wished to clarify the position regarding her annual leave entitlement. During this meeting, the Complainant provided a breakdown of her annual leave from 2023. At this point, the Respondent became defensive and stated that the Complainant’s calculation in this regard was incorrect. She stated that she would be required to review the calculations as she believed that the Complainant had exceeded her annual leave entitlement for the year. Again, the Complainant stated that the Respondent’s demeanour was cold and out of character. Towards the end of this conversation, the Complainant stated that she believed that her relationship with the Respondent had changed since she communicated news of her pregnancy. This was not challenged by the Respondent at this time.

From this date, the Complainant noted that the communication between herself and the Respondent, which was normally frequent and mutually friendly, became more sparce and curt. In evidence, the Complainant referred to a series of text messages, outlining her views in this regard. At the start of December 2023, the Complainant discovered that the Respondent had engaged the service of a babysitter in the recent past. This was of concern to the Complainant as she would normally provide these services for the family, or at least be asked to do so if required.

On 5th December 2023, the Respondent replied to the Complainant regarding the annual leave calculations. This email also expressly stated that, in the Respondent’s view, the employment would be “ending” on 14th March 2024. The following day, the Complainant responded clarifying that she had not tendered her resignation and that she intended to commenced maternity leave the following March. By further response, dated 11th December 2023, the Respondent replied stating that the Complainant had resigned her position during the meeting of 2nd October. In evidence, the Complainant unequivocally stated that this was not the case, and that she had not resigned her position, or made any statement that might be interpreted as a resignation during that meeting. On 13th December, the Complainant responded, unambiguously stating that she did not resign her employment, and that if she did intend to do so, she would have issued a resignation in writing. Towards the end of the email, the Complainant repeated her intention to commence maternity leave the following March.

Two days later, on 15th December 2023, the Respondent again denied the Complainant’s position regarding the purported resignation. In addition to the same, the Respondent alleged that the Complainant was in breach of her contractual obligations to the Respondent in her directorship of an external business. The Respondent further alleged that the Complainant had “a hand” in running two further companies.

The following day, the Complainant responded to the allegations raised in correspondence. This letter stated that since she communicated the news of her pregnancy, the positive relationship between the parties had dissipated. She further expressed her concern that the Respondent was now looking for reasons to dismiss the Complainant. Regarding the allegations raised by the Respondent, the Complainant addressed same in the body of this correspondence. In this respect, the Complainant confirmed that while she was listed as a director of the companies referenced, she was not actively employed by the same and did not receive any remuneration in this regard. She stated that her sole employment, and the sole subject of her focus, was her employment with the Respondent. The Complainant further asserted that she had informed the Respondent of the creation of one of the corporate entities some time previous. She stated that she had not provided any services for this organisation and that it was anticipated that her mother would do so when the company was operational. The Complainant further confirmed that while she was a shareholder and director of the other companies listed, she was not involved in any material fashion in the operation of the same.

By response, the Respondent denied that she had any issue with the fact of the Complainant’s pregnancy. She further denied that she had any knowledge of the other businesses set up by the Complainant. The Respondent expressed concern that the Complainant was personally listed on the company website and that the site purported to provide extensive services, including sleep overs. This correspondence further raised a new allegation regarding an application for planning permission issued by the Complainant. In quoting from the application as lodged with the relevant authority, the Respondent noted that the Complainant stated that she intended to work on the adjoining farm. On 20th December 2023, the Complainant responded to this email repeating that she had no employment outside of her engagement with the Respondent. She again reiterated that she did not resign her employment during the previous meeting. Given that the nature of these correspondences was causing the Complainant a great deal of upset, she requested that the Respondent cease issuing the same. The Complainant stated that she believed that she answered the allegations raised and that she would not be repeating these answers over further emails. By response dated 22nd December, the Respondent again set out their position regarding the alleged alternative employment and stated that, for the first time, “your employment is at risk if you are not being honest with us”. On that same date, the Complainant replied stating that she believed that all queries had been answered and that he intended to see the Respondent after the Christmas break. On 29th December, the Complainant stated that she had been advised to take some time of on medical advice.

On that same date, the Respondent issued an extensive correspondence to the Complainant. This correspondence stated that the Respondent did not accept the Complainant’s responses in relation to the other engagements outside of her employment with the Respondent. In addition to the same, the Respondent submitted that the Complainant had been dishonest in her dealings with them, particularly in relation to these outside interests.  The Respondent further referenced the denial of previous conversations regarding the Complainant’s alleged resignation from employment. On foot of the foregoing, the Respondent stated that the Complainant, by these actions, had irrevocably damaged the trust and confidence required necessary in any contract of employment. The correspondence went on to state that the Respondent “cannot trust (the Complainant) to be employed in the care of our children”. The correspondence ended with the Respondent informing the Complainant that her contract of employment was to be terminated, with contractual notice to be paid in lieu.

The Complainant, via her representative, called her father to give evidence. In this regard, the witness stated that while the Complainant was listed as a director and shareholder of one of his companies, she had no active involvement in the same on a day-to-day basis. In addition to the foregoing, the witness stated that while the Complainant had an interest in the family farm, and did hope to build her family home in the area, the farm had engaged the direct services of an employee to assist with the day-to-day duties relevant to the same.

By submission, the Complainant, via her representative, stated that her dismissal occurred on the grounds of her pregnancy. In this regard, they stated that following the Complainant’s communication of her pregnancy, the Respondent falsely asserted that the Complainant resigned her employment. When the Complainant repeatedly denied that that she had done so, and stated that she intended to commence a period of maternity leave, the Respondent then raised, within matter of days, the issue of the purported outside employment. When the Complainant repeatedly answered the Respondent’s queries in this regard, they sought to add another allegation in respect to the Complainant’s statements on the planning application. The position of the Complainant was that the Respondent initially attempted to coerce the Complainant’s resignation, and when this did not occur, they concocted spurious grounds for dismissal. They submitted that this dismissal occurred in the absence of any of the normal processes that might protect the Complainant’s rights and that would demonstrate that the Respondent had any grounds to dismiss the Complainant. On foot of the same, they submitted that her dismissal was clearly influenced by her pregnancy and as such, the Complainant had suffered discrimination at the hands of the Respondent.

From the outset, the Respondent denied each of the allegations raised by the Complainant.

In this regard, they agreed with the Complainant’s position regarding commencement dates, her job title and rate of pay. The Respondent further agreed that for the vast majority of the Complainant’s engagement, the relationship was friendly, professional and mutually beneficial.

In evidence, the Respondent stated that during a conversation on 2nd October, the Complainant announced that she was pregnant. The Respondent congratulated the Complainant and expressed her happiness for her. She stated that this news was not entirely unexpected from her perspective. During this conversation, the Complainant clearly and unambiguously stated that she did not intend to come back to work. The Respondent understood and accepted the Complainant’s position in this regard and was appreciative of the advance notice. The parties then had a conversation regarding the Complainant’s likely end date.

In the weeks following the Complainant’s announcement, the parties had a discussion regarding the Complainant’s remaining annual leave. Given that the Complainant had exhausted her annual leave entitlement, the parties agreed that she would take a period of unpaid leave at the Complainant’s request. Thereafter, the Complainant indicated that she would like to work reduced hours, particularly on Mondays, again this request was granted. In evidence the Respondent denied that any change occurred in the parties’ relationship at this point, and stated that all interactions remained friendly. In this respect, the Respondent referenced an invitation to a social event that was extended to the Complainant. In this regard, it noted that the Complainant gladly accepted that and stated that “it would be great to enjoy the last Christmas celebration with (the family)”. In evidence the witness stated that this message clearly demonstrated that the Complainant viewed this period as the final few weeks of her employment.

On 9th November 2023, the Complainant sought to query the information contained on her payslip. When it was explained that the reduction arose as a consequence of the Complainant’s reduced hours, the Complainant sought a meeting in relation to the same, as she did not believe that the Respondent was being fair. In evidence, the Respondent stated that she was surprised by this change of attitude from the Complainant as, to this point, all requests on the part of the Complainant had been facilitated. A meeting in relation to this issue was arranged for 30th November. During this meeting, the Complainant outlined that she felt that the Respondent had treated her annual leave entitlement inconsistently and unfairly. In this respect, the Complainant advised that she had a further five days entitlement due. While the Respondent believed these calculations to be incorrect, she suggested a compromise. In this respect, the Respondent issued an email suggesting that given that it was anticipated that the Complainant’s employment would end the following year, she could use some of the forthcoming year’s allowance in advance.  By response, the Complainant did not dispute the Respondent’s calculations, but stated that she did not resign her employment and, for this first time, the Complainant asserted that she intended to commence a period of maternity leave. The Respondent replied thereafter, stating that she was clear in her recollection regarding the Complainant’s resignation and had been planning accordingly. Thereafter, on 11th December 2023, the Respondent’s signed a maternity benefit form presented by the Complainant.

In addition to the Complainant’s failure to acknowledge her prior statement of resignation, further matters came to light that caused the Respondent a significant degree of concern. In particular, the Respondent became aware that the Complainant had set up and was operating an external business, providing extensive and time-consuming services. It was also apparent that the Complainant was a significant shareholder in, and director of, companies that had significant assets and turnover. This was of particular concern to the Respondent given the nature of the Complainant’s duties in her household, and the apparent time-consuming nature of these external activities. In this regard, the Respondent referred to a provision in the Complainant’s contract of employment that expressly prohibited alternative employment while engaged with the Respondent. By email dated 15th December 2023, the Respondent set out these concerns in some detail and requested a response as a matter of urgency.   By correspondence dated 16th December the Complainant set out her responses, accepting her involvement in these other companies but denying that she was actively employed by the same. In addition to the same, the Complainant again denied that she resigned her employment during the meeting of 2nd October. In evidence, the Respondent stated that she found these explanations lacking in credibility. The witness referenced the text messages relating to the social event as a clear demonstration that the Complainant, at that time, intended to resign her employment. Regarding the Complainant’s position regarding the alternative employment, the witness reference testimonials on the company website stating that extensive services were being provided. In this respect, the Complainant’s contact details were expressly listed on the website in question.

Thereafter, further information came to light that cast further doubt on the Complainant’s working commitments, and her honesty in dealing with the queries raised by the Respondent. In particular, the Respondent became aware that the Complainant made an application to the relevant local authority stating that she intended to work full-time, or indeed was working full-time, at a farm adjoining her family’s property. These concerned were again put to the Complainant by way of correspondence dated 18th December. This correspondence outlined that the Complainant’s repeated refusal to accept that she had resigned her employment and her continuing attempts to mislead the Respondent in relation to the Complainant’s external activities, served to undermine the Respondent’ trust and confidence in her. Thereafter, the Complainant refused to respond in any meaningful way to the issued raised by the Respondent. By correspondence dated 20th December 2023, the Complainant requested that the Respondent simply cease writing to her in relation to these matters. This response did nothing to answer the queries raised by the Respondent or alleviate their concerns. This continued refusal to answer to the queries raised by the Respondent, and to address the substantial concerns of the Respondent served to further erode the trust and confidence with the Complainant. In evidence, the Respondent stated that the Complainant’s position was one of enormous responsibility in her household and that as a consequence of the same, she placed a great deal of trust in the Complainant. She stated that once it became apparent that the Complainant was not devoting her full time and professional energy to the role, she had a right to express these concerns to the Complainant, and to allow her the opportunity to respond. Rather then provide any form of coherent response, the Complainant refused to answer the queries and simply disengaged from the process. This action, or more accurately inaction, on the part of the Complainant diminished the trust necessary for the performance of the Complainant duties to the point where she could no longer be entrusted with her role and her employment would have to be terminated. By correspondence dated 31st December 2023, the Respondent set out her concerns in this regard in some detail and advised the Complainant that her contract of employment was terminated on these grounds. In evidence, the Respondent absolutely denied that this dismissal had anything to do with the Complainant’s pregnancy but came about by reason of the issues listed in the relevant correspondence.

By submission, the Respondent denied that the dismissal of the Complainant was in any way influenced by her pregnancy. In this respect they stated that the relevant correspondence, and the direct evidence of the Respondent, clearly outlined that serious issues arose in relation to the Complainant’s employment and her apparent employment and extensive business affairs outside of the workplace. The Complainant’s steadfast refusal to address these concerns, in addition to her repeated and incorrect insistence that she did not resign her employment, served to irrevocably breach the trust and confidence necessary for any employment relationship and of absolute necessity given the nature of the Complainant’s employment. By submission, the Respondent further expressed concern that Complainant, by her own admission, had misrepresented herself to a state agency. On this basis, the Respondent submitted that the Complainant was not discriminated against under the Employment Equality and on this basis, her application should fail.

CA-00062404-001 – Complaint under the Employment Equality Act

In the present case, it is common case that the Complainant was dismissed less than three months following the announcement of her pregnancy. By submission, and in evidence, the Complainant submitted that no clear or cogent grounds for her dismissal existed, and that the same arose as a consequence of her pregnancy. By response, the Respondent denied these claims, alleging that the Complainant actions, namely engaging in work outside of her contract of employment, her failure to accept that she had previously resigned her employment and her dishonestly in addressing the issues raised by the Respondent, served to irrevocable breach the trust and confidence necessary for the performance of her contract of employment.

In this regard, Section 6 of the Employment Equality Act prohibits discrimination any discriminatory ground.

Subsection (1)(a) of that Section provides that,

“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…which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned”

Subsection (2)(a) prohibits discrimination on the basis that that party is a woman and the other is a man (referred to as “the gender ground”).

In the case of Dekker v Stichting Vormingscentrum 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.

Regarding the burden of proof for such complaints, Section 85 allocates the probative burden between the parties. In particular, Section 85(A)(1) provides that,

“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.”

In the matter of Southern Health Board -v- Mitchell [2001] E.L.R. 201 the Court set out the now well-established test in determining whether the probative burden shifts by application of this subsection. In particular, the Court held that,

“The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.

It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment”.

In relation to this burden of proof in matters involving a specific allegation of pregnancy related dismissal, Bolger, Bruton and Kimber have stated that,

“The case law on burden of proof in cases of alleged pregnancy dismissal has developed in a singular manner due to the particular provisions of the Equal Treatment and Pregnancy Directives. It is now well established that the existence of the pregnancy itself is sufficient to shift the burden of proof to the employer to prove that a dismissal of a pregnant employee was not on grounds of the pregnancy.” Bolger, Bruton and Kimber in, Employment Equality Law -Round Hall Press 2012, Section 2-222

In the matter of Teresa Cross (Shanahan) Croc’s Hair and Beauty & Helen Ahern EDA195, the Labour Court considered at some length the protections afforded to pregnant women. In summary, and in consideration to the extensive body of relevant European authorities, the Court held as follows,

“It is abundantly clear from these authorities, and from the legislative provision of the European Union, that women are to be afforded special protection from adverse treatment on account of their condition, from the commencement of their pregnancy until the end of their maternity leave. The entitlement to that protection is to be regarded as a fundamental right within the legal order of the Union which the Courts and Tribunals of the Union must vindicate within the limits of their jurisdiction. It seems equally clear that where a pregnant woman is treated adversely because of her condition during this period of special protection the employer bears the burden of proving, on cogent and credible evidence, that such treatment was in no sense whatsoever related to her pregnancy. This is a matter that the Court will consider further in addressing the application of the burden of proof in cases such as the instant case.”

Regarding the instant matter, while the parties are at odds in relation to many points of evidence, it is common case that the Complainant informed the Respondent of her pregnancy during a meeting held in October 2023. It is further accepted that the Complainant was dismissed almost three months later, a date firmly within the period of special protection described in the authority cited above. In this regard, and in consideration of the excerpt cited above, under the operation of Section 85A of the Act, the burden of proof will shift to the Respondent to demonstrate that the dismissal was not on the grounds of pregnancy, or to adopt the language of the Court, to prove on the basis of cogent and credible evidence, that the dismissal was in no sense whatsoever related to the Complainant’s pregnancy.

The first point of contention between the parties related to the meeting of 2nd October 2023. While the parties agree that the Complainant confirmed to the Respondent that she was pregnant at this meeting, a conflict of evidence arises in relation to the communication of the Complainant’s intentions thereafter. In contemporaneous correspondence, by submission and in evidence, the Respondent submitted that the Complainant set out her intention to resign her employment at what would have been the commencement of her maternity leave the following year. By response, also outlined in correspondence, submission and direct evidence, the Complainant denied that she gave any intention to resign her employment at this meeting. In this regard it is noted that both parties steadfastly maintained their respective positions under robust cross examination by opposing counsel.

At this juncture, this conflict of evidence is essentially impossible to resolve. Notwithstanding the same, it should be noted that the meeting in question was an informal meeting between two persons that had, at that time, a friendly social and professional relationship. As such, no notes were kept of the meeting and no other witnesses were present. Having heard the respective evidence of the parties, it is clear that such an informal tone could give rise to misunderstanding between the parties. In this regard, it is far for inconceivable that the Complainant may well have said that she intended to end her employment the following year, with the silent implication being that she intended to end the active point of her employment and commence maternity leave thereafter. It is equally conceivable, and not at all unreasonable, that the Respondent took this to mean that the Complainant intended to permanently resign her employment the following year.  In this regard, it is apparent that at this point a misunderstanding, and nothing more, existed between the parties at this time. This misunderstanding should have been resolved by the Complainant clearly and unambiguously confirming that she did not intend to resign her employment and that she intended to commence a period of maternity leave the following year.

As matter transpired, it appears that the Respondent did not accept the Complainant’s version of events and did not accept that she may have misunderstood the Complainant’s intentions. Rather, the Respondent took exception to the fact that the Complainant contradicted her version of events and would not accept that she had, allegedly, resigned her employment. In this regard, the Respondent sought to rely on the following passage contained in the matter of Shinkwin -v- Donna Millett EDD044,

“A resignation is a unilateral act which, if expressed in unambiguous and unconditional terms, brings a contract of employment to an end. The contract cannot be reconstructed by the subsequent unilateral withdrawal of the resignation. Where adequate notice is given, the contract is generally terminated in accordance with its terms and since there is no repudiation the acceptance of the resignation by the employer is not required in order to determine the contract”.

The difficulty from the Respondent’s perspective in the application of this principle, is that a significant dispute arises as to whether the Complainant actually expressed in any terms, at all, that she wished to reign her employment. While the Respondent has placed reliance on a statement by the Complainant that she wished to attend a social event to spend a final Christmas with the family, this statement, when taken at its absolute height, cannot be said to constitute an “unambiguous and unconditional” termination of employment.

In such circumstances, it would be reasonable to expect the Respondent to accept the Complainant’s position and simply move on with the relationship. However, it is apparent that the Respondent formed the view that the Complainant’s contradiction of her version of events contributed to the erosion of trust and confidence between the parties. This issue is specifically referenced in the letter of dismissal as one of the contributary factors in the decision to dismiss. As it is apparent that in contradicting the Respondent’s version of events, the Complainant was simply putting forward her recollection of events, this allegation, of itself, does not form a clear or cogent rationale any form of disciplinary sanction at all, let alone the dismissal of the Complainant.

By submission, the Complainant stated that once she refused to accept the Respondent’s position regarding her alleged resignation, the Respondent changed tack and began to search for grounds to dismiss her. In this respect, the Complainant’s representative drew attention to the timing of the commencement of the disciplinary process. From the correspondence opened by the parties, it is apparent that the Complaint first contested the Respondent recollection of events on 6th December 2023. Nine days later, on 15th December 2023, the Respondent raised, for the first time, the issue of the Complainant’s apparent engagement in other employment in contravention of a term of her contract of employment. In this regard, the position of the Respondent was that a third party had, at this time, informed her of the service in question. When the Respondent examined the same, she discovered that it was the services in question were apparently provided by the Complainant. Notwithstanding this position, no witness evidence was produced by this person either at the hearing or during the later internal process, such as it was.

By response, the Complainant stated that while she was nominally involved in the companies in question, she was not actively employed or engaged with them. In this regard, the relevant term of the Complainant’s contract of employment states that,

“The Employee agrees not to take any other employment while in this position”.

Clearly, this term contains no prohibition on the Complainant being involved in third party organisations in a non-employment capacity. In this respect, the evidence of the Complainant was that she was a shareholder and / or director in her father‘s companies, without any day-to-day involvement in the same. This position was confirmed by the Complainant’s father who provided some brief evidence regarding the relevant corporate structures and operations of the companies in question. The Complainant further stated that she assisted her mother in creation of a company, and was listed as a contact on the same, but was not employed by the company and did not provide any services to the organisation. The position adopted by the Complainant, at all times, was that she did not have any employment outside of that with the Respondent, and was not in breach of the term in question.

Again, it appears that the Respondent simply refused to accept the Complainant’s explanations in this regard. When the Complainant set out the responses outlined above, in some detail, the Respondent included a new ground of allegation, this time relating to statements contained in documents submitted to the relevant planning authority. The first point to note regarding this application was that it was this document was created and issued some time previously. In this respect, it is common case that there was no issue with the standard of the Complainant’s work throughout her employment. It is further noted that the Respondent had been actively aware of the nature and content of the Complainant’s application for some time previous. In this regard, messages shared between the parties from May 2022, some nineteen months prior to dismissal, were opened. These messages demonstrate that an article outlining the Complainant’s judicial review proceedings arising from the planning application were shared with the Respondent, with the Respondent positively reacting to the outcome in favour of the Complainant. The text of this article was opened to the Respondent, with the same noting that the Complainant was a “full-time operator of the family farm”, that “she has a genuine need to live close to her employment” and that “her work required her to live at the farm, particularly during lambing and foaling season”. In these circumstances, it is difficult to conceive how these matters caused the Respondent such difficulty in December 2023, to the point when they contributed to the dismissal of the Complainant, when she had been aware of them for some nineteen months previous. It is further noted that part of the Respondent’s rationale was that the Complainant was either misleading her present employer or the relevant government agency. Again, it can be demonstrated from this article that the Respondent was aware of the Complainant’s statements, to both the planning authorities and the High Court, for some time previous without any apparent concern of her part.

In circumstances where an employer has concerns regarding an employee’s conduct, including a breach of their terms of employment, the standard procedure is to invite the employee in question to an investigation meeting to determine the relevant factual background. Thereafter, if required, the matter would normally proceed through the applicable disciplinary process with an internal appeal permitted in the event of an adverse finding. In the present case, it is apparent that the Respondent engaged in no such process. Indeed, it appears that no formal meeting of any description was convened between the parties, with the Respondent raising allegations by way of email and the Complainant responding in the same manner. The process ended with the Respondent determining that the Complainant conduct was such that she no longer had trust in her to complete her duties and that, as a consequence of the same, her employment was to be terminated. Such a process was clearly conducted in breach of the Complainant’s right to a fair hearing. By engaging in a comprehensive internal process, an employer allows the accused employee a full opportunity to account for their actions, explain the surrounding circumstances and set out any mitigating factors. Regarding the instant case, if the Respondent held sincere concerns regarding the Complainant’s conduct, it was incumbent on her to engage in such a process to determine that the behaviour in question occurred, and that it was sufficiently serious in nature so as to warrant the sanction of dismissal. As matters transpired the Respondent did not engage in such a process, and it is apparent that she acted as the sole witness, investigator and disciplinary body, with no right of appeal being offered.  In this regard, it is apparent that rationale for dismissal, and that decision to dismiss itself, was based on the subjective opinion of a single individual.

In consideration of the accumulation of the foregoing points, I find that the Respondent has not demonstrated on clear and cogent evidence that the dismissal of the Complainant was not related to her pregnancy. In this respect the grounds of dismissal, being the refusal to accept the Respondent’s version of events regarding the Complainant’s alleged resignation, the involvement in other enterprises and the statements contained in the planning application, either did not form grounds for disciplinary action, were explained in correspondence or were already within the knowledge of the Respondent. Regarding the overall finding, that the Complainant was dishonest in her dealings with the Respondent, I find that this has not been demonstrated at all, and that the Complainant generally sought to answer queries as they were put to her.

Having heard the entirety of the evidence of the witnesses, it is apparent that the parties enjoyed a serene and mutually beneficial working arrangement until such a time as the Complainant informed the Respondent of her pregnancy. Thereafter, the relationship between the parties deteriorated until such a time as the Respondent determined that the employment should end. In circumstances whereby the Respondent bears the burden of proof in determining that the dismissal was not connected to the Complainant’s pregnancy, and in light of the finding that she has not done so, I find that the Complainant was discriminated against by the Respondent and, as a consequence of the same, her application succeeds.

CA-00061351-001 – Complaint under the Terms of Employment (Information) Act

Regarding this complaint, the Complainant has alleged that the contract of employment issued to her was deficient in that it made no reference to a reference period by which the Complainant might determine whether she is in receipt of the national minimum rate of pay. By response, the Respondent submitted that such a breach was so minor as to be inconsequential. They further submitted that the Complainant rate of pay was many multiples of the national minimum wage and as such, no possible prejudice arises.

While I agree with the Respondent in respect of many of their submissions in this regard, the fact remains that they were under a legal obligation under the impleaded Act to provide a written statement in respect to the issue raised by the Complainant. As it is common case that this did not occur, I find that the Respondent is in breach of a single obligation under the Act, and that the Complainant’s case is duly deemed to be well-founded.

CA-00061351-002 – Complaint under the Organisation of Working Time Act

Regarding this particular complaint, the Complainant alleged that she did not receive daily rest breaks in accordance with the Act. In this regard, the Complainant referenced an email from February 2023 offering various amounts of overtime to the Complainant. By contemporaneous response, the Complainant accepted some of the overtime offered, with the last such occasion occurring on 9th May 2023.

In circumstances whereby the complaint was referred to the Commission on 1st February 2024, the cognisable period for the purposes of the present complaint is 1st August 2023 to the date of referral. During the hearing, the Complainant provided a spreadsheet outlining her recollection of her hours of work. In this respect, she submitted that on the weekend commencing 8th September 2023, she took care of the children for the entirety of the weekend. As a result of the same, the Complainant submitted that she did not receive a daily rest break in accordance with the Act.

In circumstances whereby the Respondent did not maintain records to contradict the Complainant’s version of events, I find that the complaint is well-founded.

CA-00061351-003 – Complaint under the Organisation of Working Time Act

Regarding this particular complaint, the Complainant alleged that she did not receive rest breaks in accordance with the Act.

In this respect, the parties agreed that the Complainant would attend work at approximately 7.00am and prepared for the school run. Once the same was completed at approximately 9.00am, the Complainant could complete her daily tasks on her own schedule, until such a time as school finished at approximately 3.00pm. In this regard, the Complainant was in a position to schedule her breaks in accordance with the Act and could reasonably anticipate that she would not be required to complete any duties during this time.

Having regard to the foregoing, I find that this complaint is not well-founded.  

CA-00061351-004 – Complaint under the Organisation of Working Time Act

This complaint was not pursued by the Complainant and is deemed to be not well-founded.

CA-00061351-005 – Complaint under the Organisation of Working Time Act

Regarding this complaint, the Complainant has alleged that she did not receive compensation for outstanding annual leave on the termination of her employment.

By submission, the Complainant stated that she commenced 2023’s annual leave year with an agreement that 3 days of the former years annual leave entitlement would be carried over. Thereafter, she submitted that she availed of 15.5 day of annual leave, creating an outstanding entitlement of 4.5 days.

By response, the Respondent stated that the Complainant had in fact availed of six weeks of annual leave in 2022 / 2023 and that she had no entitlement to unpaid annual leave on the termination of her employment.

In this regard, it is common case that the Complainant availed of an extensive period of approximately three continuous weeks of annual leave in May 2022. Thereafter, the Respondent and her family took a two-week holiday during which the Complainant was not expected to work, and by the terms of her contract, was to be treated as annual leave. In this respect, it is apparent that the Complainant availed of her full annual leave entitlement in 2022, and exceeded her partial annual leave entitlement accrued during 2022 / 2023. In such circumstances, I find that the Complainant had no entitlement to unused annual leave on the termination of her employment, and that her complaint is duly deemed to be not well-founded.

CA-00062404-001 – Complaint under the Employment Equality Act

I find that the Complainant was discriminated against, and consequently her complaint is deemed well-founded.

Regarding redress, Section 82 of the Acts empowers me to award compensation to a maximum of 104 weeks’ remuneration for the effects of an act of discrimination.

In the matter of Svetlana Grodzieka -v- Ultra Fresh Services Limited EDA32 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 considered as among the most egregious breaches of Employment Law.”

Having regard to the above, I award the Complainant the sum of €55,575.00, or the equivalent of 15 months’ salary, in compensation for the effects of the discrimination.

CA-00061351-001 – Complaint under the Terms of Employment (Information) Act

I find that the complaint is well-founded, and consequently the Complainant’s application succeeds.

Section 7 of the Act (as amended) empowers me to award compensation not exceeding four weeks’ remuneration in respect of breach of the Act. While the Complainant has established that the Respondent has not complied with a requirement under the Act, it is further apparent that the breach in question is minor and caused the Complainant absolutely no detriment or possible prejudice. Having regard to the foregoing, while noting that the complaint is well-founded, no award of compensation is warranted.

.CA-00061351-002 – Complaint under the Organisation of Working Time Act

I find that the complaint is well-founded. Regarding redress, I award the Complainant the sum of €500.

CA-00061351-003 – Complaint under the Organisation of Working Time Act

I find that the complaint is not well-founded.

CA-00061351-004 – Complaint under the Organisation of Working Time Act

I find that the complaint is not well-founded.

CA-00061351-005 – Complaint under the Organisation of Working Time Act

I find that the complaint is not well-founded.

Pregnancy Related Dismissal, Gender Ground, Process, Fact of Dismissal

Complainant

Respondent

Parties

Naomi  Hanlon

Emer McGrath

Representatives

Ms. Michelle Loughnane, Mullany Walsh Maxwells Solicitors

Ms. Mary Fay BL, instructed by  MacCarthy Johnston Solicitors

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-00061351-001

01/02/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00061351-002

01/02/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00061351-003

01/02/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00061351-004

01/02/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00061351-005

01/02/2024

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

CA-00062404-001

26/03/2024

The Complainant commenced employment on 4th August 2020. The Complainant was a full-time, permanent employee, in receipt of an average weekly wage of €855.00. The Complainant’s employment was terminated by the Respondent on 31st December 2023.

On 1st February, and 26th March, 2024 the Complainant referred the present set of complaints to the Commission. Herein, she alleged that her dismissal was discriminatory on the grounds of gender. In particular, the Complainant submitted that the Respondent dismissed the Complainant as a consequence of her informing them that she was pregnant. The Complainant also alleged a number of breaches in respect of her working time arrangements.  By response, the Respondent submitted that the Complainant was dismissed on the grounds of misconduct and that her dismissal was in no way influenced by the Complainant’s pregnancy. In addition to the same, the Respondent denied the statutory breaches raised by the Complainant.

A hearing in relation to this matter was convened for, and finalised on, 27th May 2024. This hearing was held in person, in the Commission’s Dublin offices. Both parties issued extensive submissions in advance of the hearing. Said submissions were contested and expanded upon in the course of the hearing. The Complainant gave evidence in support of her complaints while the Respondent, a natural person, gave evidence in defense. All evidence was given under oath or affirmation and was opened to extensive cross-examination by the opposing side.

At the outset of the hearing, the Adjudicator raised the fact that the complaint form listed two natural persons as the Respondent to the compliant. Following a brief discussion in relation to this matter, it was agreed that the correct Respondent is as listed above, and the form was amended accordingly.

No issues as to my jurisdiction to hear the complaints were raised at any stage of the proceedings. Following an enquiry from the Adjudicator, no application to anonymise this decision in its published form was raised by either party.

In evidence, the Complainant stated that she was employed as a nanny in the Respondent’s household. The Complainant commenced her employment on 4th August 2020 on a part-time basis, with the employment becoming full-time on 14th September 2020.

From the outset, and for the vast majority of her employment, the Complainant stated that she enjoyed a positive and friendly relationship with the Respondent. The Complainant stated that she had an excellent professional and personal relationship with all members of the household. In this respect she stated that she met the Respondent and her family on numerous social events, and that the family attended her wedding in May 2023.

On 2nd October 2023, the Complainant attended a performance review with the Respondent. The meeting itself was positive, with no issues raised regarding the Complainant’s conduct or performance. At the conclusion of the meeting, the Complainant informed the Respondent that she was pregnant and that she had been feeling ill as a result of the same. In evidence, the Complainant stated that the Respondent’s demeanour changed at this moment. The Respondent enquired as to the Complainant’s plans now that she was pregnant. The Complainant was somewhat confused by this question and enquired as to what the normal approach in such matters was. By response, the Respondent stated that the normal process is for leave to commence two weeks prior to the expected date of birth. The Respondent further enquired as to the Complainant’s plans following the birth. At this point, the Complainant had not considered the same as she had been unwell for the last number of weeks. In evidence, the Complainant stated that this meeting felt awkward and was not representative of typical affectionate and close relationship that the parties had enjoyed to this point. The Complainant stated that from this date on, the relationship between herself and the Respondent changed irrevocably.

On 20th November 2023, the Complainant sought permission from the Respondent to inform the children in the household of her pregnancy. When this occurred, the Complainant noted that the Respondent sought to quickly change the topic of conversation and did not appear to have any wish to discuss her pregnancy in this manner.

On 30th November, the Complainant wished to clarify the position regarding her annual leave entitlement. During this meeting, the Complainant provided a breakdown of her annual leave from 2023. At this point, the Respondent became defensive and stated that the Complainant’s calculation in this regard was incorrect. She stated that she would be required to review the calculations as she believed that the Complainant had exceeded her annual leave entitlement for the year. Again, the Complainant stated that the Respondent’s demeanour was cold and out of character. Towards the end of this conversation, the Complainant stated that she believed that her relationship with the Respondent had changed since she communicated news of her pregnancy. This was not challenged by the Respondent at this time.

From this date, the Complainant noted that the communication between herself and the Respondent, which was normally frequent and mutually friendly, became more sparce and curt. In evidence, the Complainant referred to a series of text messages, outlining her views in this regard. At the start of December 2023, the Complainant discovered that the Respondent had engaged the service of a babysitter in the recent past. This was of concern to the Complainant as she would normally provide these services for the family, or at least be asked to do so if required.

On 5th December 2023, the Respondent replied to the Complainant regarding the annual leave calculations. This email also expressly stated that, in the Respondent’s view, the employment would be “ending” on 14th March 2024. The following day, the Complainant responded clarifying that she had not tendered her resignation and that she intended to commenced maternity leave the following March. By further response, dated 11th December 2023, the Respondent replied stating that the Complainant had resigned her position during the meeting of 2nd October. In evidence, the Complainant unequivocally stated that this was not the case, and that she had not resigned her position, or made any statement that might be interpreted as a resignation during that meeting. On 13th December, the Complainant responded, unambiguously stating that she did not resign her employment, and that if she did intend to do so, she would have issued a resignation in writing. Towards the end of the email, the Complainant repeated her intention to commence maternity leave the following March.

Two days later, on 15th December 2023, the Respondent again denied the Complainant’s position regarding the purported resignation. In addition to the same, the Respondent alleged that the Complainant was in breach of her contractual obligations to the Respondent in her directorship of an external business. The Respondent further alleged that the Complainant had “a hand” in running two further companies.

The following day, the Complainant responded to the allegations raised in correspondence. This letter stated that since she communicated the news of her pregnancy, the positive relationship between the parties had dissipated. She further expressed her concern that the Respondent was now looking for reasons to dismiss the Complainant. Regarding the allegations raised by the Respondent, the Complainant addressed same in the body of this correspondence. In this respect, the Complainant confirmed that while she was listed as a director of the companies referenced, she was not actively employed by the same and did not receive any remuneration in this regard. She stated that her sole employment, and the sole subject of her focus, was her employment with the Respondent. The Complainant further asserted that she had informed the Respondent of the creation of one of the corporate entities some time previous. She stated that she had not provided any services for this organisation and that it was anticipated that her mother would do so when the company was operational. The Complainant further confirmed that while she was a shareholder and director of the other companies listed, she was not involved in any material fashion in the operation of the same.

By response, the Respondent denied that she had any issue with the fact of the Complainant’s pregnancy. She further denied that she had any knowledge of the other businesses set up by the Complainant. The Respondent expressed concern that the Complainant was personally listed on the company website and that the site purported to provide extensive services, including sleep overs. This correspondence further raised a new allegation regarding an application for planning permission issued by the Complainant. In quoting from the application as lodged with the relevant authority, the Respondent noted that the Complainant stated that she intended to work on the adjoining farm. On 20th December 2023, the Complainant responded to this email repeating that she had no employment outside of her engagement with the Respondent. She again reiterated that she did not resign her employment during the previous meeting. Given that the nature of these correspondences was causing the Complainant a great deal of upset, she requested that the Respondent cease issuing the same. The Complainant stated that she believed that she answered the allegations raised and that she would not be repeating these answers over further emails. By response dated 22nd December, the Respondent again set out their position regarding the alleged alternative employment and stated that, for the first time, “your employment is at risk if you are not being honest with us”. On that same date, the Complainant replied stating that she believed that all queries had been answered and that he intended to see the Respondent after the Christmas break. On 29th December, the Complainant stated that she had been advised to take some time of on medical advice.

On that same date, the Respondent issued an extensive correspondence to the Complainant. This correspondence stated that the Respondent did not accept the Complainant’s responses in relation to the other engagements outside of her employment with the Respondent. In addition to the same, the Respondent submitted that the Complainant had been dishonest in her dealings with them, particularly in relation to these outside interests.  The Respondent further referenced the denial of previous conversations regarding the Complainant’s alleged resignation from employment. On foot of the foregoing, the Respondent stated that the Complainant, by these actions, had irrevocably damaged the trust and confidence required necessary in any contract of employment. The correspondence went on to state that the Respondent “cannot trust (the Complainant) to be employed in the care of our children”. The correspondence ended with the Respondent informing the Complainant that her contract of employment was to be terminated, with contractual notice to be paid in lieu.

The Complainant, via her representative, called her father to give evidence. In this regard, the witness stated that while the Complainant was listed as a director and shareholder of one of his companies, she had no active involvement in the same on a day-to-day basis. In addition to the foregoing, the witness stated that while the Complainant had an interest in the family farm, and did hope to build her family home in the area, the farm had engaged the direct services of an employee to assist with the day-to-day duties relevant to the same.

By submission, the Complainant, via her representative, stated that her dismissal occurred on the grounds of her pregnancy. In this regard, they stated that following the Complainant’s communication of her pregnancy, the Respondent falsely asserted that the Complainant resigned her employment. When the Complainant repeatedly denied that that she had done so, and stated that she intended to commence a period of maternity leave, the Respondent then raised, within matter of days, the issue of the purported outside employment. When the Complainant repeatedly answered the Respondent’s queries in this regard, they sought to add another allegation in respect to the Complainant’s statements on the planning application. The position of the Complainant was that the Respondent initially attempted to coerce the Complainant’s resignation, and when this did not occur, they concocted spurious grounds for dismissal. They submitted that this dismissal occurred in the absence of any of the normal processes that might protect the Complainant’s rights and that would demonstrate that the Respondent had any grounds to dismiss the Complainant. On foot of the same, they submitted that her dismissal was clearly influenced by her pregnancy and as such, the Complainant had suffered discrimination at the hands of the Respondent.

From the outset, the Respondent denied each of the allegations raised by the Complainant.

In this regard, they agreed with the Complainant’s position regarding commencement dates, her job title and rate of pay. The Respondent further agreed that for the vast majority of the Complainant’s engagement, the relationship was friendly, professional and mutually beneficial.

In evidence, the Respondent stated that during a conversation on 2nd October, the Complainant announced that she was pregnant. The Respondent congratulated the Complainant and expressed her happiness for her. She stated that this news was not entirely unexpected from her perspective. During this conversation, the Complainant clearly and unambiguously stated that she did not intend to come back to work. The Respondent understood and accepted the Complainant’s position in this regard and was appreciative of the advance notice. The parties then had a conversation regarding the Complainant’s likely end date.

In the weeks following the Complainant’s announcement, the parties had a discussion regarding the Complainant’s remaining annual leave. Given that the Complainant had exhausted her annual leave entitlement, the parties agreed that she would take a period of unpaid leave at the Complainant’s request. Thereafter, the Complainant indicated that she would like to work reduced hours, particularly on Mondays, again this request was granted. In evidence the Respondent denied that any change occurred in the parties’ relationship at this point, and stated that all interactions remained friendly. In this respect, the Respondent referenced an invitation to a social event that was extended to the Complainant. In this regard, it noted that the Complainant gladly accepted that and stated that “it would be great to enjoy the last Christmas celebration with (the family)”. In evidence the witness stated that this message clearly demonstrated that the Complainant viewed this period as the final few weeks of her employment.

On 9th November 2023, the Complainant sought to query the information contained on her payslip. When it was explained that the reduction arose as a consequence of the Complainant’s reduced hours, the Complainant sought a meeting in relation to the same, as she did not believe that the Respondent was being fair. In evidence, the Respondent stated that she was surprised by this change of attitude from the Complainant as, to this point, all requests on the part of the Complainant had been facilitated. A meeting in relation to this issue was arranged for 30th November. During this meeting, the Complainant outlined that she felt that the Respondent had treated her annual leave entitlement inconsistently and unfairly. In this respect, the Complainant advised that she had a further five days entitlement due. While the Respondent believed these calculations to be incorrect, she suggested a compromise. In this respect, the Respondent issued an email suggesting that given that it was anticipated that the Complainant’s employment would end the following year, she could use some of the forthcoming year’s allowance in advance.  By response, the Complainant did not dispute the Respondent’s calculations, but stated that she did not resign her employment and, for this first time, the Complainant asserted that she intended to commence a period of maternity leave. The Respondent replied thereafter, stating that she was clear in her recollection regarding the Complainant’s resignation and had been planning accordingly. Thereafter, on 11th December 2023, the Respondent’s signed a maternity benefit form presented by the Complainant.

In addition to the Complainant’s failure to acknowledge her prior statement of resignation, further matters came to light that caused the Respondent a significant degree of concern. In particular, the Respondent became aware that the Complainant had set up and was operating an external business, providing extensive and time-consuming services. It was also apparent that the Complainant was a significant shareholder in, and director of, companies that had significant assets and turnover. This was of particular concern to the Respondent given the nature of the Complainant’s duties in her household, and the apparent time-consuming nature of these external activities. In this regard, the Respondent referred to a provision in the Complainant’s contract of employment that expressly prohibited alternative employment while engaged with the Respondent. By email dated 15th December 2023, the Respondent set out these concerns in some detail and requested a response as a matter of urgency.   By correspondence dated 16th December the Complainant set out her responses, accepting her involvement in these other companies but denying that she was actively employed by the same. In addition to the same, the Complainant again denied that she resigned her employment during the meeting of 2nd October. In evidence, the Respondent stated that she found these explanations lacking in credibility. The witness referenced the text messages relating to the social event as a clear demonstration that the Complainant, at that time, intended to resign her employment. Regarding the Complainant’s position regarding the alternative employment, the witness reference testimonials on the company website stating that extensive services were being provided. In this respect, the Complainant’s contact details were expressly listed on the website in question.

Thereafter, further information came to light that cast further doubt on the Complainant’s working commitments, and her honesty in dealing with the queries raised by the Respondent. In particular, the Respondent became aware that the Complainant made an application to the relevant local authority stating that she intended to work full-time, or indeed was working full-time, at a farm adjoining her family’s property. These concerned were again put to the Complainant by way of correspondence dated 18th December. This correspondence outlined that the Complainant’s repeated refusal to accept that she had resigned her employment and her continuing attempts to mislead the Respondent in relation to the Complainant’s external activities, served to undermine the Respondent’ trust and confidence in her. Thereafter, the Complainant refused to respond in any meaningful way to the issued raised by the Respondent. By correspondence dated 20th December 2023, the Complainant requested that the Respondent simply cease writing to her in relation to these matters. This response did nothing to answer the queries raised by the Respondent or alleviate their concerns. This continued refusal to answer to the queries raised by the Respondent, and to address the substantial concerns of the Respondent served to further erode the trust and confidence with the Complainant. In evidence, the Respondent stated that the Complainant’s position was one of enormous responsibility in her household and that as a consequence of the same, she placed a great deal of trust in the Complainant. She stated that once it became apparent that the Complainant was not devoting her full time and professional energy to the role, she had a right to express these concerns to the Complainant, and to allow her the opportunity to respond. Rather then provide any form of coherent response, the Complainant refused to answer the queries and simply disengaged from the process. This action, or more accurately inaction, on the part of the Complainant diminished the trust necessary for the performance of the Complainant duties to the point where she could no longer be entrusted with her role and her employment would have to be terminated. By correspondence dated 31st December 2023, the Respondent set out her concerns in this regard in some detail and advised the Complainant that her contract of employment was terminated on these grounds. In evidence, the Respondent absolutely denied that this dismissal had anything to do with the Complainant’s pregnancy but came about by reason of the issues listed in the relevant correspondence.

By submission, the Respondent denied that the dismissal of the Complainant was in any way influenced by her pregnancy. In this respect they stated that the relevant correspondence, and the direct evidence of the Respondent, clearly outlined that serious issues arose in relation to the Complainant’s employment and her apparent employment and extensive business affairs outside of the workplace. The Complainant’s steadfast refusal to address these concerns, in addition to her repeated and incorrect insistence that she did not resign her employment, served to irrevocably breach the trust and confidence necessary for any employment relationship and of absolute necessity given the nature of the Complainant’s employment. By submission, the Respondent further expressed concern that Complainant, by her own admission, had misrepresented herself to a state agency. On this basis, the Respondent submitted that the Complainant was not discriminated against under the Employment Equality and on this basis, her application should fail.

CA-00062404-001 – Complaint under the Employment Equality Act

In the present case, it is common case that the Complainant was dismissed less than three months following the announcement of her pregnancy. By submission, and in evidence, the Complainant submitted that no clear or cogent grounds for her dismissal existed, and that the same arose as a consequence of her pregnancy. By response, the Respondent denied these claims, alleging that the Complainant actions, namely engaging in work outside of her contract of employment, her failure to accept that she had previously resigned her employment and her dishonestly in addressing the issues raised by the Respondent, served to irrevocable breach the trust and confidence necessary for the performance of her contract of employment.

In this regard, Section 6 of the Employment Equality Act prohibits discrimination any discriminatory ground.

Subsection (1)(a) of that Section provides that,

“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…which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned”

Subsection (2)(a) prohibits discrimination on the basis that that party is a woman and the other is a man (referred to as “the gender ground”).

In the case of Dekker v Stichting Vormingscentrum 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.

Regarding the burden of proof for such complaints, Section 85 allocates the probative burden between the parties. In particular, Section 85(A)(1) provides that,

“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.”

In the matter of Southern Health Board -v- Mitchell [2001] E.L.R. 201 the Court set out the now well-established test in determining whether the probative burden shifts by application of this subsection. In particular, the Court held that,

“The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.

It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment”.

In relation to this burden of proof in matters involving a specific allegation of pregnancy related dismissal, Bolger, Bruton and Kimber have stated that,

“The case law on burden of proof in cases of alleged pregnancy dismissal has developed in a singular manner due to the particular provisions of the Equal Treatment and Pregnancy Directives. It is now well established that the existence of the pregnancy itself is sufficient to shift the burden of proof to the employer to prove that a dismissal of a pregnant employee was not on grounds of the pregnancy.” Bolger, Bruton and Kimber in, Employment Equality Law -Round Hall Press 2012, Section 2-222

In the matter of Teresa Cross (Shanahan) Croc’s Hair and Beauty & Helen Ahern EDA195, the Labour Court considered at some length the protections afforded to pregnant women. In summary, and in consideration to the extensive body of relevant European authorities, the Court held as follows,

“It is abundantly clear from these authorities, and from the legislative provision of the European Union, that women are to be afforded special protection from adverse treatment on account of their condition, from the commencement of their pregnancy until the end of their maternity leave. The entitlement to that protection is to be regarded as a fundamental right within the legal order of the Union which the Courts and Tribunals of the Union must vindicate within the limits of their jurisdiction. It seems equally clear that where a pregnant woman is treated adversely because of her condition during this period of special protection the employer bears the burden of proving, on cogent and credible evidence, that such treatment was in no sense whatsoever related to her pregnancy. This is a matter that the Court will consider further in addressing the application of the burden of proof in cases such as the instant case.”

Regarding the instant matter, while the parties are at odds in relation to many points of evidence, it is common case that the Complainant informed the Respondent of her pregnancy during a meeting held in October 2023. It is further accepted that the Complainant was dismissed almost three months later, a date firmly within the period of special protection described in the authority cited above. In this regard, and in consideration of the excerpt cited above, under the operation of Section 85A of the Act, the burden of proof will shift to the Respondent to demonstrate that the dismissal was not on the grounds of pregnancy, or to adopt the language of the Court, to prove on the basis of cogent and credible evidence, that the dismissal was in no sense whatsoever related to the Complainant’s pregnancy.

The first point of contention between the parties related to the meeting of 2nd October 2023. While the parties agree that the Complainant confirmed to the Respondent that she was pregnant at this meeting, a conflict of evidence arises in relation to the communication of the Complainant’s intentions thereafter. In contemporaneous correspondence, by submission and in evidence, the Respondent submitted that the Complainant set out her intention to resign her employment at what would have been the commencement of her maternity leave the following year. By response, also outlined in correspondence, submission and direct evidence, the Complainant denied that she gave any intention to resign her employment at this meeting. In this regard it is noted that both parties steadfastly maintained their respective positions under robust cross examination by opposing counsel.

At this juncture, this conflict of evidence is essentially impossible to resolve. Notwithstanding the same, it should be noted that the meeting in question was an informal meeting between two persons that had, at that time, a friendly social and professional relationship. As such, no notes were kept of the meeting and no other witnesses were present. Having heard the respective evidence of the parties, it is clear that such an informal tone could give rise to misunderstanding between the parties. In this regard, it is far for inconceivable that the Complainant may well have said that she intended to end her employment the following year, with the silent implication being that she intended to end the active point of her employment and commence maternity leave thereafter. It is equally conceivable, and not at all unreasonable, that the Respondent took this to mean that the Complainant intended to permanently resign her employment the following year.  In this regard, it is apparent that at this point a misunderstanding, and nothing more, existed between the parties at this time. This misunderstanding should have been resolved by the Complainant clearly and unambiguously confirming that she did not intend to resign her employment and that she intended to commence a period of maternity leave the following year.

As matter transpired, it appears that the Respondent did not accept the Complainant’s version of events and did not accept that she may have misunderstood the Complainant’s intentions. Rather, the Respondent took exception to the fact that the Complainant contradicted her version of events and would not accept that she had, allegedly, resigned her employment. In this regard, the Respondent sought to rely on the following passage contained in the matter of Shinkwin -v- Donna Millett EDD044,

“A resignation is a unilateral act which, if expressed in unambiguous and unconditional terms, brings a contract of employment to an end. The contract cannot be reconstructed by the subsequent unilateral withdrawal of the resignation. Where adequate notice is given, the contract is generally terminated in accordance with its terms and since there is no repudiation the acceptance of the resignation by the employer is not required in order to determine the contract”.

The difficulty from the Respondent’s perspective in the application of this principle, is that a significant dispute arises as to whether the Complainant actually expressed in any terms, at all, that she wished to reign her employment. While the Respondent has placed reliance on a statement by the Complainant that she wished to attend a social event to spend a final Christmas with the family, this statement, when taken at its absolute height, cannot be said to constitute an “unambiguous and unconditional” termination of employment.

In such circumstances, it would be reasonable to expect the Respondent to accept the Complainant’s position and simply move on with the relationship. However, it is apparent that the Respondent formed the view that the Complainant’s contradiction of her version of events contributed to the erosion of trust and confidence between the parties. This issue is specifically referenced in the letter of dismissal as one of the contributary factors in the decision to dismiss. As it is apparent that in contradicting the Respondent’s version of events, the Complainant was simply putting forward her recollection of events, this allegation, of itself, does not form a clear or cogent rationale any form of disciplinary sanction at all, let alone the dismissal of the Complainant.

By submission, the Complainant stated that once she refused to accept the Respondent’s position regarding her alleged resignation, the Respondent changed tack and began to search for grounds to dismiss her. In this respect, the Complainant’s representative drew attention to the timing of the commencement of the disciplinary process. From the correspondence opened by the parties, it is apparent that the Complaint first contested the Respondent recollection of events on 6th December 2023. Nine days later, on 15th December 2023, the Respondent raised, for the first time, the issue of the Complainant’s apparent engagement in other employment in contravention of a term of her contract of employment. In this regard, the position of the Respondent was that a third party had, at this time, informed her of the service in question. When the Respondent examined the same, she discovered that it was the services in question were apparently provided by the Complainant. Notwithstanding this position, no witness evidence was produced by this person either at the hearing or during the later internal process, such as it was.

By response, the Complainant stated that while she was nominally involved in the companies in question, she was not actively employed or engaged with them. In this regard, the relevant term of the Complainant’s contract of employment states that,

“The Employee agrees not to take any other employment while in this position”.

Clearly, this term contains no prohibition on the Complainant being involved in third party organisations in a non-employment capacity. In this respect, the evidence of the Complainant was that she was a shareholder and / or director in her father‘s companies, without any day-to-day involvement in the same. This position was confirmed by the Complainant’s father who provided some brief evidence regarding the relevant corporate structures and operations of the companies in question. The Complainant further stated that she assisted her mother in creation of a company, and was listed as a contact on the same, but was not employed by the company and did not provide any services to the organisation. The position adopted by the Complainant, at all times, was that she did not have any employment outside of that with the Respondent, and was not in breach of the term in question.

Again, it appears that the Respondent simply refused to accept the Complainant’s explanations in this regard. When the Complainant set out the responses outlined above, in some detail, the Respondent included a new ground of allegation, this time relating to statements contained in documents submitted to the relevant planning authority. The first point to note regarding this application was that it was this document was created and issued some time previously. In this respect, it is common case that there was no issue with the standard of the Complainant’s work throughout her employment. It is further noted that the Respondent had been actively aware of the nature and content of the Complainant’s application for some time previous. In this regard, messages shared between the parties from May 2022, some nineteen months prior to dismissal, were opened. These messages demonstrate that an article outlining the Complainant’s judicial review proceedings arising from the planning application were shared with the Respondent, with the Respondent positively reacting to the outcome in favour of the Complainant. The text of this article was opened to the Respondent, with the same noting that the Complainant was a “full-time operator of the family farm”, that “she has a genuine need to live close to her employment” and that “her work required her to live at the farm, particularly during lambing and foaling season”. In these circumstances, it is difficult to conceive how these matters caused the Respondent such difficulty in December 2023, to the point when they contributed to the dismissal of the Complainant, when she had been aware of them for some nineteen months previous. It is further noted that part of the Respondent’s rationale was that the Complainant was either misleading her present employer or the relevant government agency. Again, it can be demonstrated from this article that the Respondent was aware of the Complainant’s statements, to both the planning authorities and the High Court, for some time previous without any apparent concern of her part.

In circumstances where an employer has concerns regarding an employee’s conduct, including a breach of their terms of employment, the standard procedure is to invite the employee in question to an investigation meeting to determine the relevant factual background. Thereafter, if required, the matter would normally proceed through the applicable disciplinary process with an internal appeal permitted in the event of an adverse finding. In the present case, it is apparent that the Respondent engaged in no such process. Indeed, it appears that no formal meeting of any description was convened between the parties, with the Respondent raising allegations by way of email and the Complainant responding in the same manner. The process ended with the Respondent determining that the Complainant conduct was such that she no longer had trust in her to complete her duties and that, as a consequence of the same, her employment was to be terminated. Such a process was clearly conducted in breach of the Complainant’s right to a fair hearing. By engaging in a comprehensive internal process, an employer allows the accused employee a full opportunity to account for their actions, explain the surrounding circumstances and set out any mitigating factors. Regarding the instant case, if the Respondent held sincere concerns regarding the Complainant’s conduct, it was incumbent on her to engage in such a process to determine that the behaviour in question occurred, and that it was sufficiently serious in nature so as to warrant the sanction of dismissal. As matters transpired the Respondent did not engage in such a process, and it is apparent that she acted as the sole witness, investigator and disciplinary body, with no right of appeal being offered.  In this regard, it is apparent that rationale for dismissal, and that decision to dismiss itself, was based on the subjective opinion of a single individual.

In consideration of the accumulation of the foregoing points, I find that the Respondent has not demonstrated on clear and cogent evidence that the dismissal of the Complainant was not related to her pregnancy. In this respect the grounds of dismissal, being the refusal to accept the Respondent’s version of events regarding the Complainant’s alleged resignation, the involvement in other enterprises and the statements contained in the planning application, either did not form grounds for disciplinary action, were explained in correspondence or were already within the knowledge of the Respondent. Regarding the overall finding, that the Complainant was dishonest in her dealings with the Respondent, I find that this has not been demonstrated at all, and that the Complainant generally sought to answer queries as they were put to her.

Having heard the entirety of the evidence of the witnesses, it is apparent that the parties enjoyed a serene and mutually beneficial working arrangement until such a time as the Complainant informed the Respondent of her pregnancy. Thereafter, the relationship between the parties deteriorated until such a time as the Respondent determined that the employment should end. In circumstances whereby the Respondent bears the burden of proof in determining that the dismissal was not connected to the Complainant’s pregnancy, and in light of the finding that she has not done so, I find that the Complainant was discriminated against by the Respondent and, as a consequence of the same, her application succeeds.

CA-00061351-001 – Complaint under the Terms of Employment (Information) Act

Regarding this complaint, the Complainant has alleged that the contract of employment issued to her was deficient in that it made no reference to a reference period by which the Complainant might determine whether she is in receipt of the national minimum rate of pay. By response, the Respondent submitted that such a breach was so minor as to be inconsequential. They further submitted that the Complainant rate of pay was many multiples of the national minimum wage and as such, no possible prejudice arises.

While I agree with the Respondent in respect of many of their submissions in this regard, the fact remains that they were under a legal obligation under the impleaded Act to provide a written statement in respect to the issue raised by the Complainant. As it is common case that this did not occur, I find that the Respondent is in breach of a single obligation under the Act, and that the Complainant’s case is duly deemed to be well-founded.

CA-00061351-002 – Complaint under the Organisation of Working Time Act

Regarding this particular complaint, the Complainant alleged that she did not receive daily rest breaks in accordance with the Act. In this regard, the Complainant referenced an email from February 2023 offering various amounts of overtime to the Complainant. By contemporaneous response, the Complainant accepted some of the overtime offered, with the last such occasion occurring on 9th May 2023.

In circumstances whereby the complaint was referred to the Commission on 1st February 2024, the cognisable period for the purposes of the present complaint is 1st August 2023 to the date of referral. During the hearing, the Complainant provided a spreadsheet outlining her recollection of her hours of work. In this respect, she submitted that on the weekend commencing 8th September 2023, she took care of the children for the entirety of the weekend. As a result of the same, the Complainant submitted that she did not receive a daily rest break in accordance with the Act.

In circumstances whereby the Respondent did not maintain records to contradict the Complainant’s version of events, I find that the complaint is well-founded.

CA-00061351-003 – Complaint under the Organisation of Working Time Act

Regarding this particular complaint, the Complainant alleged that she did not receive rest breaks in accordance with the Act.

In this respect, the parties agreed that the Complainant would attend work at approximately 7.00am and prepared for the school run. Once the same was completed at approximately 9.00am, the Complainant could complete her daily tasks on her own schedule, until such a time as school finished at approximately 3.00pm. In this regard, the Complainant was in a position to schedule her breaks in accordance with the Act and could reasonably anticipate that she would not be required to complete any duties during this time.

Having regard to the foregoing, I find that this complaint is not well-founded.  

CA-00061351-004 – Complaint under the Organisation of Working Time Act

This complaint was not pursued by the Complainant and is deemed to be not well-founded.

CA-00061351-005 – Complaint under the Organisation of Working Time Act

Regarding this complaint, the Complainant has alleged that she did not receive compensation for outstanding annual leave on the termination of her employment.

By submission, the Complainant stated that she commenced 2023’s annual leave year with an agreement that 3 days of the former years annual leave entitlement would be carried over. Thereafter, she submitted that she availed of 15.5 day of annual leave, creating an outstanding entitlement of 4.5 days.

By response, the Respondent stated that the Complainant had in fact availed of six weeks of annual leave in 2022 / 2023 and that she had no entitlement to unpaid annual leave on the termination of her employment.

In this regard, it is common case that the Complainant availed of an extensive period of approximately three continuous weeks of annual leave in May 2022. Thereafter, the Respondent and her family took a two-week holiday during which the Complainant was not expected to work, and by the terms of her contract, was to be treated as annual leave. In this respect, it is apparent that the Complainant availed of her full annual leave entitlement in 2022, and exceeded her partial annual leave entitlement accrued during 2022 / 2023. In such circumstances, I find that the Complainant had no entitlement to unused annual leave on the termination of her employment, and that her complaint is duly deemed to be not well-founded.

CA-00062404-001 – Complaint under the Employment Equality Act

I find that the Complainant was discriminated against, and consequently her complaint is deemed well-founded.

Regarding redress, Section 82 of the Acts empowers me to award compensation to a maximum of 104 weeks’ remuneration for the effects of an act of discrimination.

In the matter of Svetlana Grodzieka -v- Ultra Fresh Services Limited EDA32 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 considered as among the most egregious breaches of Employment Law.”

Having regard to the above, I award the Complainant the sum of €55,575.00, or the equivalent of 15 months’ salary, in compensation for the effects of the discrimination.

CA-00061351-001 – Complaint under the Terms of Employment (Information) Act

I find that the complaint is well-founded, and consequently the Complainant’s application succeeds.

Section 7 of the Act (as amended) empowers me to award compensation not exceeding four weeks’ remuneration in respect of breach of the Act. While the Complainant has established that the Respondent has not complied with a requirement under the Act, it is further apparent that the breach in question is minor and caused the Complainant absolutely no detriment or possible prejudice. Having regard to the foregoing, while noting that the complaint is well-founded, no award of compensation is warranted.

.CA-00061351-002 – Complaint under the Organisation of Working Time Act

I find that the complaint is well-founded. Regarding redress, I award the Complainant the sum of €500.

CA-00061351-003 – Complaint under the Organisation of Working Time Act

I find that the complaint is not well-founded.

CA-00061351-004 – Complaint under the Organisation of Working Time Act

I find that the complaint is not well-founded.

CA-00061351-005 – Complaint under the Organisation of Working Time Act

I find that the complaint is not well-founded.

Pregnancy Related Dismissal, Gender Ground, Process, Fact of Dismissal