Employee not invited to apply for manager role following maternity leave found to have been discriminated against on the grounds of gender.

In the case Gino's Italian Ice Cream Limited v Siobhan Nolan (ADE/19/76), the Labour Court recently considered whether an employee had been discriminated against on the grounds of her gender in circumstances where she was not given an opportunity to apply for a managerial position following her maternity leave.

The Complaint ⚓︎

The Complainant was employed by the Respondent from March 2013 until 22 September 2018.  The Complainant went on maternity leave in April 2018 and was due to return to work on 30 September 2018.  The Respondent hired a Ms Luczak to replace the Complainant during her maternity leave.

In August 2018, the Complainant contacted the Respondent in relation to her return to work following her maternity leave and expressed an interest in working at a managerial level when she returned.  She was told that an Area Manager would contact her. When the Complainant attended at the shop a few days later, the Shop Manager told her that she would soon be leaving the employment and that the Complainant's replacement, Ms Luczak would be promoted as her replacement. The Complainant expressed her disappointment that she had not been given an opportunity to apply for the managerial position, which she attributed to the fact that she was on maternity leave.

The Complainant resigned from employment on 22 September 2018 and submitted complaints to the WRC under the Employment Equality Acts 1998-2015 ('the Acts') alleging that she had been discriminated against on the grounds of gender and family status.  She subsequently withdrew her complaint under the family status ground.

When the matter was heard before the WRC the Complainant's complaint was not upheld and she appealed to the Labour Court.

The Complainant argued that she should have, and would have, been given the chance to apply for the vacant post except for the fact she was on maternity leave at the time.

The Respondent's Position ⚓︎

The Respondent's submitted that there was no obligation on it to promote an employee. Where it does so, the promotion is based on justifiable reasons such as experience and primary skills. The Respondent guaranteed the Complainant's right to return on the same terms as she left prior to her maternity leave.  She was never told that she would be returning to a lesser role nor was she denied future managerial opportunities that may arise since her pregnancy.

In the course of various communications, the Respondent queried the Complainant's availability, to which she replied that she was available on a full-time basis, including weekends.  However, the Respondent claimed that it had only sought clarity regarding the Complainant's availability because of experience with other employees returning from maternity leave who had sought to work different arrangements than they had prior to going on the leave.

The Respondent said Ms Luczak had a strong managerial background, which made her the most suitable candidate at the time.  By the time the Complainant returned from maternity leave, Ms Luczak had completed the management training programme. The Respondent claimed that it did not promote people to managerial jobs until they had undergone this training.

The Respondent also claimed that it had a policy of not promoting people who had spent any significant time in a shop to manager positions in that shop.  Therefore, even if the Complainant had not been on maternity leave, she would not have been considered for the vacancy in question, the Respondent claimed. The Respondent said it was surprised that the Complainant had resigned and noted she did not avail of the internal grievance procedure.

Decision ⚓︎

In reaching their decision, the Labour Court had regard to jurisprudence of the EU courts and referred to the Equal Treatment Directive 2006/54, which provides that any less favourable treatment of a woman related to pregnancy or maternity leave constitutes unlawful discrimination.

It was noted that special protection is afforded to women from the commencement of their pregnancy until the end of the maternity leave and this is to be regarded as a fundamental right. Where a pregnant woman is treated adversely because of her condition during this period, the Court noted that the employer bears the burden of proving, on cogent and credible evidence, that such treatment was in no way related to her pregnancy.

The Court noted that the facts of this case were that the Complainant was on maternity leave, she indicated that when she returned, she would be interested in being considered for a managerial position; such a position arose to be filled but she was not considered for this. The Court was satisfied that there was prima facie evidence that the Complainant was discriminated against on the grounds of gender due to the fact that she was on maternity leave at the relevant time.  The burden of proof therefore shifted to the Respondent and it was for the Respondent to prove that the treatment of the Complainant was not related to her pregnancy or the fact that she was on maternity leave.

The Court noted the various arguments put forward by the Respondent in this regard. It had argued that there was a policy that no staff member could be appointed to a managerial position unless they had undertaken the Respondent's training programme and that the Complainant had not done so.  However, the Respondent accepted that the management programme had not been codified in writing and that there was no documentary proof to show that the participation in this programme was a prerequisite for consideration for a manager role. The Court also said that it was not clear why the Complainant could not have been accommodated to participate in the training programme upon her return from maternity leave, if this was in fact required.

The Court found that the Respondent had not come anywhere close to meeting the burden of proving that the treatment of the Complainant was unrelated to her pregnancy. The Court was satisfied that the Complainant had been directly discriminated on the grounds of her gender, contrary to the Acts.

In assessing the level of compensation to be awarded to the Complainant the Court had regard to EU case law and noted that the redress should 'guarantee real and effective judicial protection and have a real deterrent effect on the employer'.  Taking all of the factors into account the Court awarded the Complainant compensation in the amount of €20,000.

Key points from this decision ⚓︎

Pregnant employees and employees on maternity leave are afforded significant protection under both Irish and EU law.

However, often when employees are on maternity leave, in particular, they can be out of sight and therefore out of mind. It is important that employees on maternity leave continue to be involved in the organisation and that they are updated in relation to any significant developments within the organisation, where appropriate i.e., potential restructure/ redundancies. Those employees should also be notified of any vacant roles/ promotion opportunities which may be relevant to them.

It is clear from this decision that it is not sufficient for an employer to say that because an employee is on maternity leave, she was not invited to apply for a suitable position.