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Raquel Vieira Dos Santos Silva v Eteam Workforce Limited (ADJ-00051855) is a decision of the Workplace Relations Commission (“WRC”) in a case under the Employment Equality Acts 1998-2015 (the “Acts”). It concerned an employee who alleged she was dismissed from her employment because she was pregnant.
Facts: The Complainant was employed by the Respondent as a Category Sourcing Consultant from 12th December 2022 until 29th February 2024. She was issued with a contract of employment in November 2022, which did not contain an end date.
In July 2023 the Complainant informed the Respondent that she was pregnant, following which emails were exchanged regarding her due date and estimated start of her maternity leave. The Complainant was presented with a contract addendum ten days later, purporting to extend her contract from the end of December 2023 until the end of February 2024, the month she was due to commence maternity leave. The Complainant initially refused to sign this addendum as it was the Complainant’s position that she was employed on a full-time permanent basis since her start date, and she told the WRC that there was never any mention of her role being fixed-term in nature. The Complainant submitted to the WRC that she eventually signed this addendum under duress, as she was told that she would receive no income for January and February 2024 if she did not sign it. The Complainant’s employment was terminated on 29th February 2024 while she was on maternity leave.
The Respondent’s position was that it was an error that the Complainant’s original contract had no end date. Their legal representative submitted that the Respondent’s contract with their client was being terminated at the same time as the Complainant being due to go on maternity leave, and that they had been actively trying to seek alternative roles for her.
Decision: The Adjudicator, Gaye Cunningham, considered whether the Respondent discriminated against the Complainant on the grounds of her gender and whether she was discriminatorily dismissed because of her pregnancy. Under the Acts an employer shall not discriminate against an employee on any of the nine discriminatory grounds. Section 6 (2A) states that:
“discrimination on the gender ground shall be taken to occur where, on a ground related to her pregnancy or maternity leave, a woman employee is treated, contrary to any statutory requirement, less favourably than another employee is, has been or would be treated.”
In any employment equality case before the WRC, the initial burden of proof is on the Complainant to establish facts from which discrimination may be presumed, before the burden shifts to the Respondent to prove the contrary. The Adjudicator was satisfied that a prima facie case of discrimination had been made out by the Complainant where she had been presented with a contract addendum bringing her contract to an end merely ten days after informing the Respondent of her pregnancy. The Adjudicator seemed critical that no written submissions and, in particular, no documentary evidence, had been provided by the Respondent who relied only on oral evidence at the hearing. For example, no documents were provided showing that the Respondent’s contract with the client was being terminated at the same time that the Complainant was due to go on maternity leave, or showing that they were regularly seeking alternative roles for the Complainant. The Adjudicator accepted the Complainant’s evidence that she was put under pressure to sign the contract addendum and commented that to unilaterally change an employee’s terms and conditions of employment is a serious matter, which is “particularly egregious” where the Complainant had notified the Respondent of her pregnancy.
The Adjudicator ultimately found that the Respondent discriminated against the Complainant on the ground of gender and that the Respondent discriminatorily dismissed her on the grounds of gender and related to her pregnancy. In deciding upon redress, the Adjudicator specifically referred to the European Court of Justice case Von Colson & Kamann v Land Nordrhein- Westfalen [1984] ECR 1891, which is authority for the well-established position that the sanction for discrimination should be “effective, dissuasive and proportionate”. It should be noted that this case was referred to by the Complainant in her submissions, along with the WRC case of Dr Jacqueline Elliott v Flexiteam Ltd (ADJ-00045346), where the Adjudicator stated that “the embarrassing and distressful situation the Complainant was put in” should be taken into account when deciding upon the quantum of award.
The Respondent was ordered to pay €124,800 for the effects of the discrimination and the distress caused to the Complainant. The Respondent was also ordered to pay €11,400 in respect of her loss of earnings between July and September 2024.
Takeaway for Employers: Employers should be aware that pregnant women have strong protection from discrimination in Ireland. This protection is rooted not only in the Acts, but also in the Maternity Protection Acts, EU law and the Irish Constitution. Employers should be wary of taking any steps to terminate a pregnant employee’s employment, or to terminate an employee’s employment while they are on maternity leave, as this is a form of protected leave.
Employers should also take note of the high quantum of the award in this case. As noted by the Adjudicator when referring to EU law, awards for discrimination are meant to be dissuasive. In unfair dismissal cases, awards of compensation are based on a complainant’s loss of earnings and complainants are obliged to mitigate their loss and actively seek new employment. However, in employment equality cases, awards of compensation are frequently made for the effects of the discrimination, increasing the potential exposure.
Link – https://www.workplacerelations.ie/en/cases/2024/adj-00051855.html
Authors – Tara Kelly and Jenny Wakely