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Latest in Employment Law>Case Law>Corcoran Engineering v Martin [2011]
Corcoran Engineering v Martin [2011]
Published on: 28/02/2012
Issues Covered: Dismissal Discrimination Pay
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Background

THE FACTS AND EVIDENCE

The complainant in this case was a secretary with 11 years' service with the respondent employer. At the time that her employment ended, she was job sharing working an alternate three day, two day fortnight. In 2007, she went on maternity leave for a second time. She filled out the maternity benefit (MB10) form on June 21st, setting out the date of commencement of leave as August 15th and a date of return to work of February 15th, 2008. 

A representative of her employer signed and stamped the form. Around the first week of February 2008, the complainant called into the workplace and informed her direct replacement that she would be returning on the 15th as set out on the MB10 form. Later that day, her employer rang and expressed unhappiness about her visit to the workplace. 

The complainant alleged that this call ended with her employer telling her that he was keeping on her replacement for another month and that he would get back to her in April. The respondent alleged that following this call the complainant wrote to him apologising for not contacting him, but still did not specify a return date. However, this letter also clearly asked that the respondent let the complainant know when it suited him for her to return to work.

At a subsequent meeting arranged by the respondent employer on 8th April to discuss her re-employment, the complainant alleged that her employer had acted in a rude and intimidating manner and told her that he was offering her one day’s work per week and that she would have to job share with the person who had replaced while she was maternity leave. The complainant walked out of the meeting as a result. He argued in turn that he had become aware that the replacement employee had some personal health issues and so he was very conscious of the need to treat her fairly in terms of giving her adequate notice of termination of employment. The complainant’s failure to comply with her statutory requirements concerning her date of return had therefore put him in a difficult position. Thus, he had told the complainant at this meeting that he was obliged to give her replacement adequate notice and the offer of one day’s work to the complainant was not intended to go beyond this period of notice. However, the complainant had stormed out of the meeting before he had an opportunity to explain. 

The complainant lodged her claim with the Equality Tribunal on 24th April and it was notified to the respondent by letter dated 9th May. The respondent also received a letter from the complainant on 8th May declining the offer of one day’s work and requesting her P45. By letter dated 12th May, the respondent wrote to the complainant offering her back her original hours of work. He received a reply on 15th May to the effect that she could not accept the offer and that she was leaving the matter to be dealt with by the Equality Authority.

THE DECISION

The Court’s decision in this case appears a little jumbled in terms of the sequence of the issues considered. However, the key points of it are as follows. The Court noted that Section 26 of the Maternity Protection Act 1994 confers a general right of return to work for an employee following maternity leave. Section 28 provides that the entitlement to return to work is subject to an employee notifying her employer in writing of her expected date of return. Section 40 of the Act in turn provides that an employee, who has complied with Section 28 but is not permitted to return to work, shall be deemed to have been dismissed on her expected date of return. 

Applying these sections to the facts, the Court noted that the MB10 form gave a due date of return and the complainant visited the workplace shortly before this date. Critically, this was the same procedure she had adopted with her first pregnancy and there had been no problem with it then. However, on this second occasion, her employer adopted a different stance and tried to rely upon her breach of statutory procedures. The Court noted that its previous decision in the case of Promowear Limited [2006] EED061 had held that completion of the MB10 form, in the absence of alternative notice, constituted notice for the purposes of complying with Section 28.

Thus, it found that the respondent employer was on notice of the complainant’s intention to return but did not facilitate that return as required under the maternity protection legislation. The complainant had therefore effectively been dismissed with effect from 15th February, her intended date of return to work, because there was no work available for her at that time. This dismissal breached her rights under the Equal Treatment directives and the employment equality legislation as it amounted to discrimination on the gender ground. 

The Court therefore upheld the Equality Tribunal’s decision to award €15,000 in compensation for the effects of discrimination and it specified that no part of this award related to loss of remuneration. This last finding suggests that a separate award for the loss of earnings caused by the dismissal itself might be available in a case where it was suffered.

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Disclaimer The information in this article is provided as part of Legal Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article. This article is correct at 28/02/2012
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