This recent Labour Court (the “Court”) decision considered an appeal of an Adjudication Officer’s decision (ADJ-00005793) in accordance with section 83(1) of the Employment Equality Acts 1998 - 2015, overturning that decision and awarding Ms O’Sullivan compensation of €27,500.  The case brings to the fore issues surrounding discrimination based on pregnancy, maternity and gender.

Summary and Background Facts

The Complainant, Ms O’Sullivan, submitted that she had been the subject of a discriminatory dismissal based on her gender and family status.  The Respondent denied all of the complaints made against him.

Ms O’Sullivan had worked at a medical practice in Mayo since 2006, and had been employed by a number of doctors at the practice.  The Respondent took over the practice on 1 December 2015.

It was argued by the Complainant that on the date Dr Loftus took over the practice, she also entered into an employment contract with him.  She also informed him on that date that she would be beginning her maternity leave on that same date and had arranged for cover for the 6 months period by her replacement Ms Kearns.

During this period, in February 2016, Ms Kearns had a family bereavement, and during this time, Ms O’Sullivan covered for a couple of days in the practice while Ms Kearns was off.  Some months later at the end of her leave, Ms O’Sullivan sent a text on the evening before she intended to return to work saying she would be back in the practice the next day.  Her evidence was that on returning to the practice, a conversation then followed in the presence of her replacement, Ms Kearns.  She said that Dr Loftus asked her to increase her hours, which she agreed to do.  Then he suggested job sharing with Ms Kearns, but Ms Kearns did not agree to this and mentioned that Ms O’Sullivan would get family income support if she went on social welfare benefits.

The Complainant argued that once she left that day, the Respondent made no further contact with her, and it was denied that any alternative role was ever discussed or offered to her. The Complainant also referred to a number of documents, including a contract of employment which appeared to have been signed by the Respondent. There were also documents sent to the GP Practice’s funder in relation to Ms O’Sullivan outlining that she was on maternity leave.

The Respondent argued however, that he had never employed the Complainant in any capacity and therefore he could not be accountable in terms of any employment case which she might bring.  Dr Loftus outlined the circumstances in which he worked in the village.  He had been appointed from 1 December 2015 and in order to support the provision of GP services in such areas, they are provided with a Rural Practice Support Payment that provides an annual grant and extra practice supports. He explained that the Complainant had been employed by the previous GPs in the practice.  He argued that prior to the end of her previous contract with the practice, which expired on 30 November 2015, she had been on maternity leave but her contract expired then in any event.

The Respondent disputed that he had signed a contract of employment for Ms O’Sullivan and also challenged its authenticity. He argued that as the Complainant was already on maternity leave it would be very unlikely that he would have offered her a contract until the end of that period of maternity leave.  He argued that as he already employs a practice nurse and secretary, there would be no provision for him to employ anyone further as the supports for such a GP practice are set out by statutory instrument.

He further stated that he had no recollection of offering the Complainant a contract of employment and only became aware of this as a result of correspondence from the funder in January 2016.  He claimed he did not wish to raise any issues about that because of the nature of the small community which he was working in.  Whilst he admitted that the signature on the contract of employment looked very much like his he insisted that he had not knowingly signed a contract.

His version of events were that when the Complainant came to the practice, he informed her that there was no job available but that he would consider the structure of the practice with the potential for offering her some position in the practice. He stated he asked her to return to the practice on 2 June 2016 to discuss other roles and that there was no mention of sickness benefit, and that she never then returned to the practice.

Adjudication Officer Decision

The Adjudication Officer (the “AO”) primarily dealt with the preliminary issue of the Complainant’s employment status and whether Ms O’Sullivan was in fact an employee with a contract of employment.  The AO highlighted the fact that the Respondent had received a document from the funder which sent a copy of the contract of employment, and yet the Respondent never challenged this.  Neither was the AO persuaded by the notion that the Claimant, on the first day she had ever met the Respondent, created this document and signed it with his very own signature.  The AO was also critical of the Respondent’s contention that he had just unwittingly signed a contract and not realised what he was signing, particularly as it was such a short document   As such, he found that Ms O’Sullivan was an employee with an employment contract.

Interestingly, whilst the Adjudication Officer was not persuaded by the Respondent’s evidence in terms of this preliminary issue, the substantive issue lay elsewhere.  He considered, specifically, section 28(1) of the Maternity Protection Act 1994.  This section states that the employee must notify their employer in writing not later than four weeks’ before the employee expects to return to work where they have been on maternity leave.

The Complainant had confirmed in her evidence that she did not confirm in writing her intention to return to work, and rather that the only notification that she had given had been in the form of a text message which she sent the evening before her intended return to the GP practice after it had shut for the day.

As a result, the AO held that the Complainant had lost the protections of the Maternity Protection Acts, and therefore she was not entitled to return to work in all the circumstances. This in turn meant there had been no breach under section 11 of the Employment Equality Act 1998 with regard to her right to return to work and therefore that there had been no discriminatory dismissal.

Labour Court Decision

Ms O’Sullivan then appealed this decision to the Court.

The Court heard witness evidence from the Complainant, the Respondent, her replacement Ms Kearns and the practice nurse.  Ms Kearns admitted in her evidence that she did not want to enter into a job sharing agreement with the Complainant as it would not be worth her while financially, and also that she had suggested the Complainant should claim various benefits.

The Court looked at the detail of the wording of the Employment Equality Act 1998.  It is worth highlighting the following section:

“(6)(2A) Without prejudice to the generality of subsections (1) and (2), discrimination on the gender ground shall be taken to occur where, on a ground related to her pregnancy and maternity leave, a woman is treated, contrary to any statutory requirement, less favourably than another employee is, or would be treated..”

The Court also considered case law and noted that the Court of Justice of the European Union had held that unfavourable treatment because of pregnancy is ‘by definition direct discrimination on the grounds of sex’.

There was a consideration of the burden of proof which falls in these cases, and this is always worth remembering. In cases where there is an allegation of discrimination, a complainant must firstly show that there is prima facie evidence of discrimination.  Once a prima facie case has been established, the burden then shifts onto the respondent to show that discrimination did not happen.  This is also enshrined in section 85A of the Employment Equality Acts 1998 – 2015 which outlines in subsection 1 that “Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.”  The Court also highlighted that in the converse, where the complainant does not discharge the initial burden of proof, then the complainant’s claim cannot succeed.

Following on from the discussion in relation to the burden of proof, the Court believed that Ms O’Sullivan had established a prima facie case of discrimination whereas Dr Loftus had failed to discharge the burden upon him to prove that the dismissal was for exceptional reasons which were not connected to her pregnancy.

The Court then moved on to determine the case.  It found that Ms O’Sullivan was an employee and that the decision to keep on her replacement Ms Kearns and to inform Ms O’Sullivan that there was no position available was for her was, in fact, a discriminatory dismissal, for which Dr Loftus offered no defence. The case of Webb and EMO Cargo Case C-32/93 states that employees may not have their employment terminated from the beginning of their pregnancy to the end of their maternity leave “save in exceptional circumstances, not connected with their condition”.  The Court concluded that this test had not been satisfied in this case.

In short, the Court found that by not allowing Ms O’Sullivan to return at the end of her maternity leave, there had been breaches of the EU Pregnancy Directive, the Equal Treatment Directive, as well as sections 6 and 8 of the Employment Equality Act 1998.  It was held to be a case of direct discrimination.

Commentary

This case brought up the issues of the Maternity Protection Acts 1994 - 2004, discrimination on the basis of pregnancy and gender, and employment status.

Neither the AO nor Court were persuaded by Dr Loftus’ contention that Ms O’Sullivan was not an employee, particularly where there was a contract signed by him and where a claim had been submitted to the funder with her contract attached.

Interestingly though, whilst the AO concentrated on the wording in the Maternity Protection Acts, the Labour Court did not analyse these sections particularly, and instead viewed the case in light of the European legislation, the case law and the specific wording of the Equality Employment Acts, as outlined above.  In view of that, the Court held that there had been a discriminatory dismissal.  The Court’s lack of discussion on whether her failure to notify the employer within four weeks of her intended return date in terms of the Maternity Protection Acts would seem to suggest that it would not be fatal to an employee’s claim of a discriminatory dismissal.

The case again highlights the relatively high level of awards which are made in discrimination cases, with Ms O’Sullivan being awarded €27,500 by the Labour Court – a stark reminder of the financial impact which can be caused to employers where they are unsuccessful in such claims.