• Complainant: Soniya George

• Respondent: Talbot Group

Employers should ensure their actions align with legal obligations to avoid employee discrimination claims.

The Complainant alleged discrimination by the Respondent on family status and gender grounds in April 2023, claiming they failed to provide a safe, salaried role during her pregnancy. Employed as a staff nurse since March 2022, she informed the Respondent of her pregnancy on 9 March 2023. Following a risk assessment, she was placed on paid health and safety leave from 15 March, which expired on 4 April. The Respondent then moved her to unpaid leave at €154 per week, citing an inability to find a safe position. Initially promised a transfer to a safer ward, this plan was cancelled a day before implementation. Despite requesting alternative tasks or part-time work, no role was offered until 15 May, after she filed a grievance. She began this role on 26 June. The Complainant argued the Respondent could have explored roles such as auditing or rostering and highlighted that other pregnant staff had been accommodated. Under cross-examination, she confirmed the risk assessment's validity but doubted the Respondent's efforts to find her a role. She rejected the grievance outcome, citing insufficient efforts to accommodate her, and requested her complaint be upheld, stressing the financial loss and stress caused by the Respondent’s actions.

The Respondent denied allegations of discrimination, asserting the Complainant failed to establish a prima facie case under the Acts, including identifying a valid comparator. They argued the nature of their clientele, some of whom exhibited physically aggressive behaviour, necessitated the Complainant’s placement on health and safety leave during her pregnancy. Initially, the Complainant was considered for a role in another unit, but a risk assessment deemed it unsafe, and another nurse was already on leave from that unit. The Respondent reported that 11 direct support workers were on health and safety leave during the relevant period. The HR manager testified that only 11 of the Respondent's 56 units were deemed safe for pregnant workers, with no staff nurse vacancies in these units. The Complainant was advised to apply for Health and Safety Benefit, but she declined. When a vacancy arose in a unit on 25 May, due to a nurse’s maternity leave, the Complainant was informed promptly and offered the role. The Complainant declined an earlier offer to work as a community nurse, citing lack of a car. The Respondent emphasised that it was unable to create a new administrative role and maintained that the Complainant was treated in accordance with workplace policies and legal obligations.                                    

The Adjudicator found a failure to establish a prima facie case of discrimination on the grounds of gender or family status under the Employment Equality Acts 1998–2015. The Complainant did not provide evidence of less favourable treatment compared to a valid comparator, such as a pregnant nurse of a different family status or a male employee in a similar health and safety risk scenario. Therefore, the Respondent acted in accordance with its legal obligations under the Safety, Health and Welfare at Work (General Application) Regulations 2007 and the Maternity Protection Act 1994, which mandate health and safety leave if no safe alternative role is available. The Adjudicator also determined that the Complainant's claim regarding her high salary as a factor was irrelevant to the discrimination grounds.

Since the Complainant could not demonstrate less favourable treatment based on gender or family status, the Adjudicator found no evidence to infer discrimination. The complaint was dismissed on these grounds.

Employers should ensure compliance with health and safety obligations under the Maternity Protection Act 1994 and Safety, Health and Welfare at Work Regulations 2007, conducting thorough risk assessments for pregnant employees. Employers must document efforts to find safe alternative roles, ensuring that employees are informed promptly about decisions and options. Employers should establish clear policies for health and safety leave and communicate these effectively to staff.

The full case can be found here:
https://www.workplacerelations.ie/en/cases/2024/december/adj-00046804.html