Another recent decision of the Workplace Relations Commission, A Complainant v A Respondent, (ADJ-00026680) looks at the strong protections afforded to pregnant employees

Background 

The Complainant commenced employment with the Respondent as Marketing Manager on the 4th December 2017 until the 15th October 2019. Her annual salary was €55,476.

The Complainant submitted that she informed the Respondent of her pregnancy on the morning of 29th July 2019 and later that afternoon, she was notified that she was at risk of redundancy.

The Complainant was told that there was a need to make her redundant in order to cut payroll costs and following a series of meetings in August, she was notified that her employment was terminated by reason of redundancy, with effect from 15th October 2019.

The Respondent's Position

The Respondent claimed that in the Spring of 2019 it started a restructuring process and that on the 22nd July 2019 it drafted a business case for proposed redundancies where it idenitied the Complainant's role as at risk of redundancy. The Respondent argued that this document showed that its decision to make the Complainant's role redundant pre-dated the notification of the Complainant's pregnancy.

It further claimed that the Complainant had been out on sick leave for a week from 22nd July 2019 and therefore it was only possible to inform her of her role being placed at risk of redundancy on the 29th July (the same day she notifed the Respondent of her pregnancy).

The Respondent submitted that it fully engaged with the Complainant regarding her redundancy and that she was offered a right of appeal. It also noted that two other roles were made redundant at the time.

Decision

The Adjudication Officer noted that the period of pregnancy is a specially protected period and arising from the facts, he was satisfied that a presumption of discrimination had been established and that the burden of proof therefore shifted to the employer to rebut that presumption.

In respect of the business case document which was purportedly created on the 22nd July 2019, the Adjudication Officer was not satisfied that that it had been adequately established that the document predated the notification of the Complainant's pregnancy. Furthermore, the Adjudication Officer noted that oral evidence given during the course of the hearing explained that the work undertaken by the Complainant (or at least part of it) was later undertaken by a male employee and that the Complainant was involved in the process to recruit and train that employee.

Ultimately the Adjudication Officer found that the Respondent had not rebutted the presumption of discrimination and found that the Complainant's claim was well founded.

The Adjudication Officer awarded the Complainant compensation in the amount of €55,477 representing one year's pay.

Comments

We continue to see decisions from the WRC highlighting the considerable legal protections (both nationally and at EU level) afforded to pregnant employees and employees on maternity leave.

While redundancy is a defence to an unfair dismissal claim, employers must always be mindful of their obligations under the Employment Equality Acts and carefully consider their position before making a pregnant employee or an employee on maternity leave (or recently returned from maternity leave) redundant.

In this case, the timing of the Complainant notifying the Respondent of her pregnancy and the Complainant being told that her role was at risk of redundancy is likely to have been a relevant factor. In the absence of strong evidence that the decision to make the employee's role redundant was entirely separate to her pregnancy, an employer is likey to find it difficult to defend a claim of discrimination on the grounds of gender/ pregnancy.