Ann Marie Cuddihy V DSV Solutions Limited

26-01-12

This was a recent and interesting Employment Appeals Tribunal (EAT) case that reminds us of the importance of managing Maternity correctly. Pregnant women are a strongly protected category of workers in Irish legislation and should never be treated less favourably simply because they are pregnant, have given birth or are breastfeeding.

The question to ask yourself before you act is …if she was not pregnant what would I do? Would I give her that promotion? Would I renew her contract?

 

ISSUES

This case involves the dismissal of a pregnant employee.

• The claimant commenced employment with the respondent Company in September 2009 through a recruitment agency.
• In April 2010 she was asked to take over the role of an employee who was out on sick leave.
• The respondent decided to pay a finders fee to the recruitment agency and employ her directly. She was offered a six month contract and a pay rise but she did not receive any written contract of employment or Company handbook setting out the terms of her employment.
• Soon after she discovered that she was pregnant and immediately spoke to the Commercial Director who assured her that there would be a position in the Company for her.
• A fixed term contract of employment was furnished after she informed HR of her pregnancy. The claimant raised concerns over the nature of the contract offered and was again assured that there would be no issue with extending the contract.
• In the meantime, the respondent had hired another individual on a six month contract whom the claimant had trained up.
• When the six months in her contract were up she was informed that her employment with the respondent was at an end and her contract would not be extended.

LAW

The case was taken under the Unfair Dismissals Acts 1977-2007. Reference is also made to the Maternity Protection Act, 1994. Relevant legislation includes the Employment Equality Acts, 1998 – 2008.

APPLICATION

Pregnancy is a protected position under both domestic and European legislation and this is an area within which the courts and tribunals have been seen to take a very proactive approach in protecting the position of pregnant employees. The Unfair Dismissals Act, 1977 as amended by the Maternity Protection Act, 1994, section 38(1) provides that a dismissal of an employee will be deemed to be unfair dismissal if it results wholly or mainly from:

(a) ‘the employee’s pregnancy, giving birth or breastfeeding or any matter connected therewith’;

(b) ‘the exercise by the employee of a right under the Maternity Protection Act, 1994 to any form of protective leave or natal care absence…or time off from work to attend ante-natal classes or time off from work or a reduction in hours for breastfeeding’.

Notably, no qualifying period is necessary to bring a claim for unfair dismissal by reason of pregnancy so the fact that the claimant had not accumulated the requisite 52 weeks of continuous employment in the present case did not affect her case for unfair dismissal.

The existence of pregnancy itself is sufficient to shift the burden of proof to the employer to prove that the dismissal was not on the grounds of pregnancy. For example in the case of Assico Assembly Ltd v Corcoran (EED 033/2003 Labour Court) the court held:

“Where the employee is dismissed while pregnant or on maternity leave, both legislation and case law state that the employer must show that the dismissal was on exceptional grounds not associated with her pregnancy and such grounds, in the case of dismissal, as a matter of law and in the case of discrimination as a matter of good practice should be set out in writing”.

CONCLUSION

In the present case the respondent’s arguments that the claimant’s dismissal was unconnected with her pregnancy failed to discharge the burden of proof. It is clear from the decision that the tribunal was influenced by the fact that the claimant was viewed as a valued employee by the respondent which had led to the respondent buying her out of her contract with the recruitment agency. It also concluded that there was a clear expectation that the claimant would be given a permanent role with the respondent Company.

The tribunal found that the dismissal was mainly due to the pregnancy of the claimant under section 6(2)(f) of the Unfair Dismissal Acts 1977-2007 and awarded the claimant compensation of €24,750.00.

This case clearly illustrates the importance of having defined, transparent and up to date terms of employment and adopting fair procedures when dealing with employees who are pregnant irrespective of the nature of their employment with the Company. Managers need to be cautious when giving verbal assurances to employees about anything that has not been agreed with management. They need to be confident to explain, if put on the spot that the decision has not been made yet but they will follow it up. This allows time for that Manager to think, converse with Human Resources or others relevant Managers before confirming the outcome. Unless an employer can prove on the balance of probabilities that the dismissal was unrelated to the pregnancy it is likely that it will be caught under the provisions of the Unfair Dismissals Acts and the employer will be penalised.

 

Employers considering the dismissal of an employee who is pregnant should seek professional advice from HRP to ensure they have considered all the possible outcomes.

 

Please note: CHRP Group. This document is intended to be a general guide only.If you require any further assistance or clarification on any of above points please contact HRP on 01 676 0006 www.hrpgroup.ie0

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