This is yet another pregnancy related dismissal claim upheld, indicating how high the barrier is set to show that a dismissal while pregnant is not related to the pregnancy.

In this Decision the Equality Officer refers to previous case law from the CJEU (Webb v Emo Air cargo, Brown v Rentokill, and Dekker) and quoted the Labour Court EDA 095: “only the most exceptional circumstances not connected with the condition of pregnancy allow a woman to be dismissed while pregnant.  It is equally well settled law that the dismissal of a pregnant woman (which can obviously only apply to a woman) raises a prima facie case of discrimination on the gender ground.  Once such a case has been raised the burden of proof shifts and it is for the respondent employer to prove that the discriminatory dismissal did not take place.”

The Equality Officer found that the employer was aware the complainant was pregnant at the time of her dismissal and held on the basis of the Labour Court position above, (See para 5.5.7) that a prima facie case has been raised.

However, considerable further consideration is given to the circumstances of the case with the Equality Officer concluding that the dismissal was indeed related to the pregnancy.  There was no submission from the respondent who was in liquidation and on that basis the claim was successful and the complainant awarded €19,500.

The story of the complaint is as follows. The complainant, who had previously been considered a high performer told her temporary supervisor that she was pregnant at five weeks because of concerns with lifting heavy weights during a stock take.  The complainant and supervisor undertook the stock take with the assistance of the manager with the heavy items.

 The following day the complainant was given a first written warning because she missed out part of the store in the stock take.  The complainant accepted that she had done this but was concerned that the warning referred to previous issues which she had no knowledge of and on that basis she refused to sign the warning.

She was then off for a week on sick leave and when she returned she was called to a two hour meeting where she was told the warning was being recorded whether she signed it or not.  She was asked whether the sick was likely to recur, how many sick days she intended to take, and whether she wanted to return full time or part time after her maternity leave although it is unclear if this occurred at the meeting.

Three weeks after informing her supervisor of her pregnancy and receiving the written warning the complainant was asked to travel to another store to meet with the general manager who was considering her dismissal for using her mobile phone and the internet.  She was dismissed at that meeting.

The respondent, in liquidation, did not attend the hearing although a previous supervisor did attend and attested to the complainant’s high performance and the consideration of her for promotion in addition to the general policy on the use of mobile phones and internet during work, the issues for which it appears the complainant was dismissed.

Full Decision:

http://www.equalitytribunal.ie/Database-of-Decisions/2013/Employment-Equality-Decisions/DEC-E2013-023-Full-Case-Report.html

Why is this case important?

• Do your managers know to pass on to HR information about an employee’s pregnancy immediately they are informed?
• Are they aware that where a pregnant employee is dismissed and the employee can show that the employer knew of the pregnancy, the burden of proof automatically shifts to the employer to show that the dismissal is unrelated to the employee’s pregnancy?
• This expands to all less favourable treatment based on section 6(2A) of the Acts.