Introduction

Discrimination related to pregnancy and matters connected with pregnancy such as the exercise of maternity leave entitlements appears to have been on the increase during the course of the recession. The 2009 report of the Equality Tribunal stated that there was a general decrease in claims under the employment equality legislation of 12% but a rise of 20% in claims of gender discrimination. Anecdotally at least, it would seem that a number of these concerned less favourable treatment on grounds of pregnancy.


The Legal Position

The legal position in relation to pregnancy related discrimination is clear and employers need to understand this. A long line of decisions of the European Court of Justice (ECJ), including the Dekker, Brown and Webb cases have declared that such discrimination is unlawful on the gender ground, as pregnancy is a uniquely female condition and therefore any unfavourable treatment in relation to it must be gender discrimination.

In the Irish context, the Labour Court has recently confirmed in the case of Intrum Justitia and McGarvey (ADE/08/22, Determination No.EDA095, March 27th, 2009 - See Legal Island email No.688, April 2009) that where an employee is pregnant and is dismissed from her job, the onus of proof in any claim brought by the employee concerned automatically shifts to the employer to show that alleged discriminatory treatment did not take place. This mail considers the most recent appeal to the Labour Court under this heading.


Less Favourable Treatment

It may seem obvious to say that to sustain a claim of discrimination generally under the employment equality legislation a complainant must show that s/he has been less favourably treated on the specific ground or grounds cited and not just unfairly treated, but it is an important qualification. In this regard, this email also features a recent appeal to the Labour Court where a number of complainants alleged discriminatory treatment on the race ground (which includes nationality). However, the employer concerned succeeded in defending one aspect of the claim by showing that all employees, regardless of nationality, were treated equally unfairly in terms of the employer’s initial failure to carry out the terms of the Construction Industry Registered Employment Agreement (REA).

1. Case Name and Reference: Tara Contracts Ltd (In liquidation) and Jonylaite

Court or Tribunal: Labour Court

Legislative Reference: Employment Equality Acts 1998 to 2004

Jurisdictions/Subject Matter: Gender Ground and Pregnancy Dismissal

Tara Contracts Ltd (In liquidation) and Jonylaite (ADE/09/33, Determination No.EDA102, 20th January, 2010)
The complainant in this case, a Lithuanian national, brought claims to the Equality Tribunal under a number of heads of discrimination including family status, marital status, race and gender. Only her claim concerning gender discrimination succeeded and she was awarded €4000 in compensation. She appealed to the Labour Court that the level of compensation awarded was insufficient.

The respondent employer (an employment agency then in liquidation) did not attend nor was it represented at the hearing. However, the Court noted that there was no dispute that the agency had been the complainant’s employer and there was evidence that it had provided the complainant with a contract of employment and regular pay slips, as well as a P45 and P60 certificate.

It was submitted on behalf of the complainant that when she informed the respondent of her pregnancy, she was immediately dismissed and was not offered any further employment. It was further suggested that the respondent agency’s client (i.e. where the complainant had been sent to work) had incorrectly informed the complainant that in order to claim maternity benefit during maternity leave, she needed a copy of her P45 (or cessation of employment certificate).

The effect of this, according to the complainant’s representative, was to disentitle her to such benefit as she was then classed as being unemployed. It was suggested that this conduct placed a foreign national in a particularly vulnerable position and in this context the representative cited the case of Campbell Catering v Rasaq [2004] 15 ELR 310. In that case, the Court had recognised that many non-national workers encounter special difficulties in employment arising from a lack of knowledge of statutory and contractual rights and that applying the same procedural standards to non-national as to Irish workers could amount to the application of the same rules to different situations could in itself amount to discrimination. Finally, it was submitted that the Equality Officer’s calculation of the complainant’s pay had been incorrect and that had affected the compensation awarded.

In a brief determination, the Court reiterated that both the Webb and Brown decisions of the ECJ had made it clear that the dismissal of a woman on grounds of pregnancy is direct discrimination contrary to the equal treatment directive. It also repeated its own statement in the Intrum Justitia and McGarvey case that it is settled law that special protection against dismissal exists during pregnancy. The dismissal of a pregnant employee is therefore a prima facie case of discrimination and it is for the employer to show that discriminatory treatment did not take place. In the instant case, there was evidence to show that the complainant informed the respondent of her pregnancy in June 2008 and in the absence of rebutting evidence from the respondent employer, the Court accepted that it was the dominant reason for dismissal. The compensation award was varied upwards from €4000 to €7500.


2. Case Name and Reference: : Clare Civil Engineering Ltd and Ostojic and others

Court or Tribunal: Labour Court

Legislative Reference: Employment Equality Acts 1998 to 2004

Jurisdictions/Subject Matter: Race discrimination and less favourable treatment

The complainants in this case consisted of three Latvian and one Croatian national, each of whom was employed as a General Labourer by the respondent. They alleged that they had suffered discrimination on the race ground in relation to their conditions of employment. Their claims before the Equality Tribunal failed and this decision was appealed to the Labour Court.

It was argued on their behalf before the Court that in failing to apply the terms of the Construction Industry Registered Employment Agreement (REA) and that by not providing interpretation facilities at health and safety meetings, the respondent had treated the complainants less favourably on the race ground. It was argued that as the complainants were non-nationals, an employer had a responsibility to take special measures to protect them.

On behalf of the respondent in turn it was submitted that, as a small company without a dedicated human resources representative, contracts of employment were not issued to any of the 50 odd staff, only 10% of whom were foreign nationals. Equally any breach of the REA applied to all workers and so it should not be seen as discriminatory. On the question of health and safety, the respondent submitted that all workers including the complainants received induction and health and safety talks known as ‘toolbox talks’. None of the complainants had ever indicated that they did not understand the information being provided to them and it was explained that a Latvian foreman was available to give assistance. In addition the respondent indicated that two of the complainants had good English and two had adequate English.

In its determination, the Court made it clear that it had no jurisdiction under the employment equality legislation to deal with specific complaints that the REA had not been honoured and this was a matter to be dealt with under the Industrial Relations Acts. In terms of such failure amounting to race discrimination, the Court accepted that all workers, whether of Irish or Non-Irish origin, were treated in the same manner. It also noted that the respondent employer, when contacted by a trade union in March 2006, modified pay rates and conditions of employment to comply with the REA. It could not therefore draw any conclusion that race discrimination had occurred on this issue.

On the question of health and safety instruction, the Court noted the complainant’s contention that the failure to communicate in the complainant’s national languages was discriminatory and neglectful in terms of a general duty of care. A number of cases were cited to support this argument including the Campbell Catering v Rasaq case referred to above, where the Court had recognised that many non-national workers encounter special difficulties in employment arising from a lack of knowledge of statutory and contractual rights.

However, the Court noted that the Rasaq case concerned the dismissal of an individual in circumstances where a full understanding of a disciplinary process and procedure was required as dismissal was a potential outcome. In this case however, while health and safety matters were obviously important, the Court was satisfied that the respondent undertook what was reasonably required and that the complainants had never raised any issue previously about the manner or content of the instruction.

The Court concluded that the complainants had therefore failed to make out a prima facie case of discrimination and dismissed their claims.