Legal
There is strong legal protection in Ireland for expectant mothers, and women dismissed for pregnancy-related reasons can take a case under either the Unfair Dismissal Acts 1977-2015 (the "Unfair Dismissal Acts") or under the Employment Equality Acts 1998-2015 (the "Equality Acts").
Two recent cases highlight the need for employers to exercise extreme caution when dismissing a pregnant employee to ensure the dismissal is not in any way connected to the pregnancy.
Case law
In Case ADJ-00002143 the Workplace Relations Commission (WRC) ordered a crèche owner to pay €4,902.12 to an employee for breach of a number of employment statutes as follows:
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€902.12 for breach of the Terms of Employment (Information) Act 1994 (this claim was conceded by the employer)
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€4,000 for breach of the Unfair Dismissals Acts finding that the employee was unfairly dismissed as a result of her pregnancy
The employer disputed that a dismissal had occurred saying that the employee had left of her own accord and that any issues which had arisen were due to the employee's work performance and her bad temper. The employer also alleged that the employee had not informed her that she was pregnant. However, on the contrary, the employee alleged that the employer had acted differently towards her from the moment she advised that she was pregnant. The employee also alleged that the employer had asked if her pregnancy was "planned or unplanned" weeks before dismissing her without notice.
At the hearing, the employee was able to show text messages supporting her version of events, including one sent to her employer on one occasion when she was unable to attend work as she had to go to hospital due to a suspected ectopic pregnancy. The employee claimed that this text was evidence that she had previously informed the employer of the fact that she was pregnant, contrary to the employer's claim that it was not advised of the pregnancy before the employee was dismissed.
In addition, the employee also produced texts received by her from the employer's crèche manager in which the crèche manager expressed concern for the employee's pregnancy. The employee also claimed that the crèche manager had previously witnessed the employee informing her employer that she was pregnant. This, the employee alleged, was evidence that both the employer and the crèche manager were aware that the employee was pregnant before she was dismissed.
On balance, the WRC accepted that dismissal had occurred mainly as a result of the pregnancy and this was also supported by the fact that the employer had hired two new workers around the time of the dismissal.
In BT Ward Ltd t/a Subway v Sandra Gegeckiene the Labour Court awarded €10,000 to a woman who suffered gender discrimination contrary to the Equality Acts when her employer dismissed her for pregnancy-related reasons.
The employee had been employed initially on a three-month trial contract, during which time she informed her employer that she was pregnant. She alleged that her hours were immediately reduced as a result and that her request for paid time-off to attend hospital appointments was refused.
When her contract ended, she was given a further six-month trial contract and was dismissed without reason when it ended.
Her employer, on the other hand, alleged that:
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Her request for time-off was accommodated as soon as the employer understood the true nature of the request
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She was not offered extra shifts due to complaints about her work
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It wished to terminate her employment at the end of the initial contract, but instead extended it because it was worried about dismissing a pregnant employee
There were obvious disparities between the employee's and employer's version of events. However, taking all of the evidence into account the Court held that the employer reduced the employee's hours immediately or shortly after she had announced her pregnancy and that this decision was largely due to her pregnancy. In addition, there was no record of any complaints made against or notified to the employee and the employer did not formally sanction her for poor performance.
The Court held that the employer ultimately wanted to terminate the employee's employment both due to her pregnancy and her request for paid time off, and that it reduced her hours, extended her probation, and finally dismissed her under the guise of not renewing a fixed contract of employment.
Legislation
Under the Unfair Dismissal Acts a dismissal is considered to be automatically unfair if the employee is dismissed for reason of pregnancy, giving birth or breast feeding or any connected matters. Employers should bear in mind that the 12 month service requirement, which usually applies under the Acts, does not apply to employees dismissed for these reasons. In the case of pregnant employees, the burden of proof is on an employer to prove, on the balance of probabilities, that the dismissal was unrelated to pregnancy.
The Equality Acts prohibit the treatment of one person less favourably than another on the basis of nine grounds including gender (this includes pregnancy-related discrimination). Once it can be shown the employer knew of the pregnancy, the burden of proof shifts to the employer to show, on the balance of probabilities, that there has been no discrimination. There is no service requirement under the Equality Acts: employees are entitled to this protection from day one of their employment.
Top tips for employers
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Ensure managers in your company know to inform HR as soon as an employee advises that she is pregnant
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Avoid making inappropriate comments about pregnancy to mitigate any claim of harassment or discrimination on the grounds of gender or family status;
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Carry out a risk assessment for any pregnant employees and new mothers and take action if risks are identified i.e. altering the employee's working conditions or offering suitable alternative work;
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Allow pregnant employees to attend ante natal appointments; and
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If you are considering dismissing an employee who is pregnant be mindful of the legislation referred to above.
Contributed by Catherine O'Flynn and Aedín Brennan of William Fry.