Richard Grogan

In case ADJ18062, being a case of a waitress and a restaurant, the Adjudication Officer quoted the case of O’Brien –v- Thomas Kiely trading as Tomas Kiely Catering UD325/2013, where the EAT examined the case of a catering assistant let go because of poor financial circumstances and selecting her rather than another catering assistant.

The employee in that case had argued that her dismissal was pregnancy-related. The EAT concluded that the respondent informed the complainant early on in her employment of the threat to the financial viability of the company, that the respondent had brought forward sufficient evidence to displace the statutory presumption set out in the Unfair Dismissal Act 1977–2015 by the Maternity Protection Act 1994, and that the termination of her employment was due to her pregnancy.

Of particular interest to the Tribunal was the supply of evidence concerning the difficulties which the company had prior to the notification of her pregnancy, which were significant factors.

In case ADJ2143, in considering a complaint of unfair dismissal on the grounds of pregnancy, there was a conflict of evidence. In that case, the Adjudication Officer had concluded that the employer had knowledge of the pregnancy. Also, the steep jump from chastising the complainant about personal hygiene matters to dismissal without any intervening steps and the failure of the manager to attend and rebut the assertion that the complainant advised him of her pregnancy and the different grounds given to her dismissal tended, on balance, to the conclusion that the respondent was on notice of the pregnancy.

In this particular case, the Adjudication Officer accepted that there were difficulties with the complainant but that, on the totality of the evidence on the balance of probabilities, failed to be convinced that the dismissal was unconnected with her pregnancy and, on that basis, accepted that the dismissal occurred mainly because of her pregnancy.

Between July 2018 and January 2019, the period of her loss, the complainant applied for three positions, and as such her efforts to mitigate her loss were seriously inadequate, according to the Adjudication Officer.

Unfair dismissal

This is one of the reasons why we constantly are of the view that we cannot understand why an employee will bring a claim for unfair dismissal rather than an equality claim. A woman who is pregnant and who is dismissed, depending on when she is dismissed, may unfortunately find it difficult to find a job in the intervening period between the date of the dismissal and the time of the birth.

Under the unfair dismissal legislation, there is an obligation to minimise loss. There is no obligation to apply for any jobs under the employment equality legislation and the mere fact of dismissal allows an Adjudication Officer to award compensation. In fact, in an equality case, asking questions of the employee as to whether the employee has sought work or obtained new work would, in our opinion, be totally outside the remit of the Adjudication Officer – either to ask those questions or allow those questions to be asked.

In this case, minor compensation was awarded and it is primarily because of the fact, we would contend, that the employee had not applied for jobs as is required under the unfair dismissal legislation.

This is a case where the employee was representing herself. Unfortunately, not knowing the law is not a defence in these cases as to where the claim should have been brought.

Where a pregnant employee is dismissed, advice should always be obtained from an employment solicitor. There are many good employment solicitors in this country and if you are reading this and you are pregnant and you have been dismissed and you are considering bringing a claim, we would ask that you would see an employment law solicitor or at least consider bringing an equality claim rather than an unfair dismissal claim.

There are many well-meaning entities and groups in this country who seem to immediately go towards unfair dismissal in these cases and it would be our view that a claim under the Employment Equality Act is a much better approach.

• Richard Grogan is a partner at Richard Grogan & Associates Solicitors. You can subscribe to the firm’s monthly newsletter at grogansolicitors.ie.