The Workplace Relations Commission (“WRC”) case of Orla Howe v Colm Kelly, Healy Crowley Ahearn ADJ-00038992 was a complaint seeking adjudication under section 77 of the Employment Equality Act, 1998 (“Act”) in respect of the Complainant’s dismissal while pregnant.
In a decision dated 21st June 2023, the Adjudicator, Marie Flynn, rejected the Respondent’s defence that the dismissal was a genuine redundancy due to the firm’s finances, noting that the Respondent did not actually reduce staff head count, but instead recruited a new member of staff.
Facts: The Complainant, a solicitor, was employed by the Respondent firm, trading as HCA Law, from 2nd January 2020 to 17th December 2021. Her employment was terminated by reason of redundancy. The Respondent, Mr Kelly, is the Principal of the firm. The Respondent stated that the redundancy was due to financial difficulties experienced by the firm. The Complainant disputed this, contending that she was dismissed due to her pregnancy and/or her anticipated maternity leave. The Complainant submitted complaints of discrimination based on both gender and family status, and a complaint of discriminatory dismissal.
The Complainant submitted that the attitude and behaviour of the Respondent towards her changed significantly after she informed him of her pregnancy. She claimed that her workload decreased considerably, and that the Respondent took over her existing files without consulting with her. She was not included in office meetings that she previously would have attended. Further, the Respondent did not discuss with the Complainant how her files would be managed when she would eventually be taking maternity leave.
The Complainant held concerns over Covid-19 measures in the workplace, particularly due to her being pregnant. The Complainant worked from home during this time and said that when her clients phoned the office, the calls were not redirected to her. She was not involved in the move to a new office space and was not informed that a new member of staff was being recruited.
The Respondent submitted that turnover of the firm reduced significantly as a result of the Covid 19 pandemic. Instructions to the firm reduced and ongoing work took longer and resulted in delays in receiving payment from clients. The Respondent received advice from his accountant to identify where cost savings could be achieved in the firm. The Respondent submitted that he analysed all options available to him, including a reduction in the Complainant’s working hours, and concluded that the firm could not continue the Complainant’s employment and he would take over the existing work of the Complainant himself. The Respondent also decided to move office. At the hearing, the Respondent told the WRC that conveyancing work, which was the work carried out by the Complainant, significantly reduced during the pandemic and the firm’s annual profits fell from €150,000 to €30,000.
In response to the Complainant’s contention that there was no plan in place for her files while she would be on maternity leave, the Respondent said that it was assumed that he would manage her files. The Respondent denied that the Complainant was being excluded from weekly meetings. He said that the meetings were held online. The Respondent sent the Complainant an “at risk” redundancy letter on 21st October 2021 due to no longer being able to afford the cost of her continued employment. In relation to not reducing the firm’s headcount after dismissing the Complainant, the Respondent stated that the new staff member was recruited to address compliance matters, which in turn would reduce the Respondent’s insurance premium, and that the Complainant’s position had not been replaced.
The Respondent maintained that there was no link between the termination of the Complainant’s employment and her pregnancy, and that the redundancy was a genuine cost saving measure made in the interests of the firm.
Decision: The Adjudicator considered relevant provisions of the legislation, including section 6(2A) of the Act (as inserted by s.4(b) of the Equality Act 2004) refers specifically to discrimination arising from the less favourable treatment of a woman by reason of her pregnancy or maternity leave:
“without prejudice to the generality of subsections (1) and (2), discrimination on the gender ground shall be taken to occur where, on a ground related to her pregnancy or maternity leave, a woman is treated, contrary to any statutory requirement, less favourable than another employee is, has or would be treated”.”
This reflects the special protections afforded by the European Union against discrimination based on pregnancy and/or maternity leave. Article 33.2 of the Charter of Fundamental Rights of the European Union (“the Charter”) provides as follows:
“To reconcile family and professional life, everyone shall have the right to protection from dismissal for a reason connected with maternity and the right to paid maternity leave and to parental leave following the birth or adoption of a child.”
Further, gender is expressly protected by Article 23 of the Charter.
Directive 2006/54/EC provides that less favourable treatment on the grounds of pregnancy is a form of discrimination prohibited by the Directive. In addition, Council Directive 92/85 Pregnancy Directive, the “Pregnancy Directive” provides for two types of substantive protection for employees – (i) health and safety protection and (ii) protection from less favourable treatment on the grounds of pregnancy.
In her decision, the Adjudicator referred to the decision of the Court of Justice of the European Union in Dekker v Stichting Vormingscentrum voor Jong Volwassenen, 1990 E.C.R. 1-03941, which was relied on in O’Brien v Persian Properties trading as O’Callaghan Hotels, DEC-E2012-010 where the Equality Officer confirmed that pregnancy is a “special protected period.” Furthermore, the Labour Court in Trailer Care Holdings Limited v Healy EDA128 found that only the “most exceptional circumstances not connected with the condition of pregnancy allow a woman to be dismissed while pregnant.”
The Adjudicator pointed out that there was no dispute that the Respondent was aware that the Complainant was pregnant at the time she was purportedly made redundant. She noted that it is well established that where a pregnant employee is dismissed at any stage of employment, this will raise an inference of discrimination on the grounds of gender. Therefore, the burden rested with the Respondent to prove that the termination of the Complainant’s employment was not discriminatory and was justified due to unrelated exceptional circumstances, as set out in section 85A(1) of the Act. The Adjudicator highlighted the timeline of events in this matter. The Complainant informed the Respondent of her pregnancy in August 2021. The Respondent was aware of the firm’s finances from May 2021 following the end of the financial year, so it was “somewhat surprising” that he waited until September 2021 to contact his accountant for advice on dealing with his finances.The Adjudicator commented that
“[t]he temporal proximity between the Complainant making the Respondent aware of her pregnancy via email on 17 August 2021 and the Respondent’s decision to address his financial situation in September 2021 is stark.”
The Complainant received notice of redundancy in November 2021 and her employment was terminated on 17th December 2021.
The Adjudicator found that the Respondent’s failure to include the Complainant in relation to fundamental matters affecting the firm, including the move to a new office, indicated that he did not envision a future for the Complainant in the firm, and did not seriously consider alternatives to making the Complainant redundant. The Adjudicator concluded as follows:
“…I am satisfied that no genuine redundancy situation existed at the time of the Complainant’s dismissal. I find that the Complainant’s dismissal was tainted with discrimination and the Respondent did not proffer sufficient evidence to show that the dismissal was not related to the Complainant’s pregnancy.”
The Adjudicator upheld the Complainant’s complaint of discriminatory dismissal and awarded her €30,000 in compensation. The Adjudicator did not uphold her complaint of discrimination on the ground of gender.
Takeaway for Employers: This case is a warning to employers to ensure that they can demonstrate that the dismissal of a pregnant employee is in no way related to the employee’s pregnancy. Where a complainant establishes facts from which it may be presumed that there has been discrimination, the burden of proof rests firmly on the employer to prove this is not the case. It is well established that the dismissal of a pregnant employee at any stage of employment is sufficient to raise an inference of discrimination on the grounds of gender. Failure by an employer to demonstrate that there were other exceptional circumstances unrelated to the employee’s pregnancy and/or maternity leave can result in substantial financial and reputational damage to the employer.
Link – https://www.workplacerelations.ie/en/cases/2023/june/adj-00038992.html
Authors – Jane Holian, Jenny Wakely and Anne O’Connell
30th June 2023