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          Ireland Update: Pregnant employee with less than 12 months continuous service awarded one years' pay after constructive dismissal

          Under Irish law, pregnant employees, employees on maternity leave and employees who have recently given birth are afforded significant protection from dismissal and discriminatory treatment in the workplace, recognising the vulnerable position they may be in during this time. A recent case before the Workplace Relations Commission (WRC), A Care Worker v Care Services ADJ-00019285, reminds employers in Ireland of the strong legal protections in relation to pregnancy.  
           

          Date: 13/01/2020

          Background 

          The employee in question worked as a care worker on a full time basis. According to the employee, she was in discussions with her employer about obtaining a 27 hour week contract in a community worker role, and was told that she would be offered this position. 

          On the 23rd August 2018, at a one to one meeting with her team leader, the team leader congratulated the employee on her new position and confirmed the contract had come through. At this meeting, the employee informed the team leader that she had just found out that she was pregnant. The team leader responded to say that, as she was working in a high support unit, she could not continue to work there. The employee was told not to come in for her next shift and that this would be covered. The employee did not finish her shift on the 23rd August 2018 as she was told to leave immediately as "it was too dangerous". Other staff were present at the time and the employee had to explain that she had to leave because she was pregnant. 

          The employee was told to attend at another location and was asked to cover a sleep-over shift, which was not something she was required to do in her previous position. She agreed to the sleep-over as she needed the hours. According to the employee, the manager at the new location commented that "we seem to get all the pregnant women" and laughed. Two other pregnant employees had been transferred to this location also. 

          On the 30th August 2018, the employee contacted the employer as she had not heard anything further about her shift or hours. The employee also made contact with the Community Welfare Officer to say that she had received no hours or payment and she had three children to support. According to the employee, when she spoke with the Acting Manager and asked what she should do in relation to her hours, she was told the only way was for her to resign and reapply for her job after pregnancy. 

          Following her conversation with the Acting Manager, the employee sent an email to the manager which said: 

          "Dear Acting Manager, due to me being pregnant, I would like to terminate my contract for the maternity contract in which I am filling at the moment and would like to re-apply for the position in the New Year when the baby is born". 

          The employee received an email from Head Office referring to her resigning on the 23rd August 2018 (in fact, this was not correct as she had been sent home from work by the team leader on the 23rd August). 

          Disappointed with how she had been treated, the employee made a complaint to the WRC alleging she had been constructively dismissed because of her pregnancy. The employee referred to the employer's failure to roster her for hours and that she was worried about receiving no payment. 

          Responding to the claim, the employer denied dismissing the employee and said that she voluntarily resigned her employment. The employer said that when the employee disclosed she was pregnant, it reacted as they do to all employees who disclose this news and took appropriate measures to ensure the employee was protected against any potential risk. It was noted that the role which the employee had been carrying out was a high risk service to adults with varying needs. The employer claimed that the employee was due to attend for work on the 30th August 2018 but sent an email confirming she wished to resign her position due to her pregnancy. 

          Constructive dismissal 

          In terms of the employee's claim of constructive dismissal, the Adjudication Officer noted that the onus/ burden was on the employee to show that the resignation was justified in the circumstances. She also noted that the failure of the employee to use internal procedures prior to her resignation was something she must consider carefully when making her decision. 

          In relation to pregnancy related dismissals, the Adjudication Officer noted that:

          "Pregnancy has been held to be a "special, protected period" in order to limit the adverse effects of discriminatory treatment on women workers and their unborn children. It follows, therefore, that a particular onus falls on an employer to respect the pregnancy". 

          The Adjudication Officer referred to Article 10 of the Pregnancy Directive, Council Directive 92/85/EEC which requires an employer to set out "duly substantiated grounds in writing" where a pregnant worker is dismissed. The Adjudication Officer held that this is the level at which the bar is set and that:

          "it is not sufficient for an employer to simply aver that a dismissal during pregnancy was for other unrelated reasons. Some persuasive evidence of an unrelated justification is required". 

          Less than 12 months continuous service 

          The employer argued that the employee did not have the required 12 months continuous service in order to succeed in a claim for unfair dismissal under the Unfair Dismissals Acts 1977-2015 ("the Acts").  

          However, the Adjudication Officer held that while the employee may not have 12 months service, as her start date was in dispute, she was basing her claim under section 6(2)(f) of the Acts which states that: 

          "The dismissal of an employee shall be deemed, for the purposes of this Act to be an unfair dismissal if it relates wholly or mainly from….the employee's pregnancy, the employee's attendance at ante-natal classes, giving birth or breastfeeding or any matters connected therewith" 

          and the section of the Acts requiring an employee to have at least 12 months continuous service do not apply. 

          Decision 

          The Adjudication Officer ultimately found that, based on the evidence, the only reason the employee resigned was due to her pregnancy. As she was pregnant, she was transferred to another location and her income was impacted. The Adjudication Officer accepted the employee's evidence that she was told by the manager to resign and reapply for a job again, which the Adjudication Officer held amounted to an unfair dismissal on the pregnancy ground. 

          The employee was awarded compensation in the amount of €23,920 which equated to 12 months salary. 

          Key points for employers 

          It is important for employers to be aware of the considerable legal protection afforded to pregnant employees and employees who have recently given birth (including employees who are breastfeeding). 

          Where a pregnant employee is dismissed, an employer will be expected to show a very clear reason for the dismissal, which is unconnected to the pregnancy and this will be examined closely by the WRC. 

          Where a pregnant employee resigns from their employment, particularly before going on maternity leave, employers would be well advised to engage with the employee as much as possible and explore potential alternative positions or working arrangements, where practicable.  

          Contact our employment experts for more information 

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