Richard Grogan

The case EDA1919, being G4S Secure Solutions (Ireland) Limited and Kelly, is a decision of the Labour Court of 12th June 2019.

In this case, the employee went on maternity leave. At the end of maternity leave, she was not back on the same site that she had previously been on. The employer contended it was the client who had the right to decide who they would accept on site and that the treatment of the complainant was nothing to do with her pregnancy or maternity leave.

The Court referred to section 6 of the Employment Equality Acts 1988-2015 and further sections 26 and 27 of the Maternity Protection Act 1994, which they set out in full.

The Court, in their decision, held that they could not accept that a clause in a contract which allowed a third party dictate who could or could not be assigned to the site was superior to any statutory right.

In respect of the alternative argument under section 27 of the Maternity Protection Act, which provides for when it is “not reasonably practicable” for an employee to return to her original assignment, the Court pointed out that the requirement of that particular section is that the work must be suitable and appropriate for the employee, and the terms and conditions relating to the place where the work is to be done and the capacity in which the employee is to be employed are not less favourable than the previous contract.

In this case, the Court pointed out that the employee, prior to her maternity leave, was based in a location approximately 30 minutes from her place of residence and was on a permanent basis. The alternate work was under a new contract, was for three months subsequently increased to a six-month fixed term contract, and in a location that required a four-hour round trip to commute. The Court pointed out that it could not accept that the terms of the contract offered were not less favourable. The Court also held that requesting a P45 was not an act of resignation.

An award of €51,168, being the maximum which the Court could award, was awarded.

They have set out in a very clear and precise way what has to be done. The defence that some other party can determine who is or who is not going to be on a site had effectively been set aside when it comes to employment rights. It is not an excuse for not allowing an employee to return to work.

For employers also, this is an important decision. It is important for employers to ensure that if an employee cannot return to the same job, that it is important that an appropriate similar type of contract and role is provided and that the employer is in a position to justify in a clear and precise way why the employer says it is not reasonably practicable for the employee to return.

The sad reality of matters is that when a woman goes on maternity leave, they will have to be replaced on a temporary basis and during that period some employers will find that the replacement is a “better worker”. There will therefore be a desire to retain that worker. That cannot be done if it impacts on an employee’s rights to return to work under the Maternity Protection Act.

A claim under the Maternity Protection Act is limited to 26 weeks’ wages. However, this case was taken under the Employment Equality Acts, where compensation of up to two years’ wages can be awarded. The Labour Court, in this case, has very clearly set out their attitude to employers who do not allow employees to return to their original work. It is one employers need to carefully take into account. For employees, the Labour Court has confirmed the substantial protection which such employees have.

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