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Ireland: Pregnancy discrimination and protections afforded to pregnant employees

16 December 2020

Another recent employment law decision focuses on the protections afforded to pregnant employees. The Labour Court considered this issue in the case of Jo Jingles Cork v Heather O'Sullivan EDA/2018, ADE/19/35. The Respondent employer in this case appealed the decision of the Adjudication Officer (AO) to the Labour Court.

WRC Decision

The Complainant claimed she had been discriminated on the grounds of her gender, owing to her pregnancy. In the first instance, the AO held that the employee had been discriminatorily dismissed on the grounds of her gender and awarded her compensation in the amount of EUR 15,000 (almost 16 months pay).

Details of the case

The Complainant commenced employment on 13 April 2015 as a class teacher working across a number of locations. The Complainant worked part time – on average 11 hours per week. Her employment terminated on 8 January 2018.

The Complainant claimed that the Respondent reacted to her request for a risk assessment in light of her pregnancy, by closing the business and terminating her employment. She submitted that this amounted to a discriminatory dismissal on the grounds of her pregnancy. She said that she informed her employer of her pregnancy in October 2017. She came to believe that one of her work venues posed a health and safety risk and she informed the Respondent of this on 2 January 2018. Two days later, on 4 January 2018, the Respondent advised her that all of her work would be cancelled for five weeks.

On 4 January, the Complainant further highlighted to the Respondent that it had particular responsibilities to pregnant employees where there is a health and safety hazard in the workplace and suggested that she be put on health and safety leave. The following day, the Respondent notified the Complainant that she was to be made redundant.

The Respondent's position

The Respondent denied that the Complainant had been dismissed due to her pregnancy and submitted that she was instead dismissed on foot of a failure of the business.

The Respondent claimed that it did not think any risk attached to the Complainant's pregnancy at work. The Respondent submitted that she had run classes herself while she was pregnant, as had two other teachers and no issue had arisen.

The Respondent submitted that the Complainant had contacted her four days before the term was due to start in Janaury 2018. At the point, fees had already been taken from customers for the Douglas location, which the Respondent said was the most profitiable element of the business. The Complainant informed the Respondent that she would be unable to run the Douglas class in the coming term as a result of health and safety concerns in that location related to her pregnancy. The Respondent said it decided, at that point, to close the business entirely as it would have to close for five weeks to allow a health and safety risk assessment to be carried out, it would have been running at a loss and it would no longer have been viable.

The Respondent noted that at no point previously had the Complainant raised concerns regarding her pregnancy at work. When she informed the Respondent of a pregnancy related health incident in Janaury 2018, she requested a risk assessment be carried out in respect of the Douglas venue. The Respondent submitted that in recognition of the fact that the Complainant worked across a range of venues, it was appropriate to conduct a risk assessment on all venues. In order to do this, the Respondent decided it would have to cancel all classes for the first half of the term, for five weeks. That cancelleation of classes, the Respondent claimed, was commercially unsustainable and the business closed as a result.

Labour Court Decision

In its decision, the Labour Court noted that the Court of Justice of the EU has made it clear that since pregnancy is a uniquely female condition, any adverse treatment of a women on the grounds of pregnancy is direct discrimination on the grounds of her gender. Such treatment can never be justified.

The Labour Court noted that disruption caused to an employer's business or the costs associated with accommodating a pregnant women in employment are, as a matter of union law, wholly irrelevant.

The Labour Court also noted that the Pregnancy Directive (Directive 92/85/EEC) provides a comprehensive legal framework in which special protection is afforded to the health and safety of pregnant women in employment.

The Court noted that the issue to be determined in this case was whether the Complainant's dismissal was on the grounds of, or related to her pregnancy, or whether other objective circumstances, wholly unrelated to her pregnancy, led to her dismissal. Having regard to the fact that the Complainant was pregnant at the date of the dismissal, the burden of proving the dismissal was not related to pregnancy, rested on the Respondent.

In its decision, the Court did not consider that the Respondent had offered convincing reasons as to why alternatives to the closure of the business were not considered in January 2018. Neither had the Respondent given the Court an understanding as to why a health and safety risk assessment of the workplace required a five week closure of the business. Finally, the Respondent was found not to have provided the Court with any evidence demonstrating a financial threat to the business prior to the Complainant raising health and safety issues relating to her pregnancy. The Labour Court concluded that the termination amounted to discrimination on the grounds of gender, arising from the Complainant's pregnancy. The Labour Court affirmed the decision of the AO, and awarded the Complainant EUR 15,000 in compensation.

Key takeaway points for employers

Health and Safety Risk Assessment: Employers are reminded that on becoming aware of an employee's pregnancy, it is vital to assess whether there are any risks to the employee's health and safety and that of her developing child, in the workplace. Where potential risks are identified, the employer should take immediate steps to remove that risk, where possible.

Adjustment of employees working conditions or working hours: If the risk assessment reveals a potential risk, and it is not practical to ensure the safety and health of the employee (and her unborn child) through preventative measures, the employer must look at adjusting the employee's working conditions or hours of work (or both). If this is not possible, the employer must provide suitable alternative work to the employee.

Health and safety leave: If the above is not possible, the employer should facilitate granting the employee with health and safety leave, under section 18 of the Maternity Protection Acts.

Pay during heath and safety leave: During health and safety leave, the employee is entitled to be paid her normal wages for the first three weeks, after which she may be entitled to receive health and safety benefit from the Department of Social Protection.

Health and Safety Authority: Employers should also be aware that the HSA is responsible for the enforcement of the Safety, Health and Welfare at Work Act 2005 and related regulations. The HSA have a number of very useful resources available and provide information on safety, health and welfare protection for employees who are pregnant, have recently given birth or who are breastfeeding. The HSA may also intervene by advising an employer on the guidelines for implementing the pregnancy at work regulations, by an inspection visit, verbal or written advice, or by issuing an enforcement notice. 

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Further Reading