About this case:

• Citation:
  ADJ-00019756
• Judgment:
  External link
• Court:
  Workplace Relations Commission

Finding that the company had failed to establish that there was no link between the woman’s pregnancy and her redundancy, Adjudication Officer Michael McEntee said he was not convinced that the CEO was unaware of her pregnancy when making decisions about redundancies, especially given the fact that the man who had been hired to cover her previous pregnancy had not been made redundant and continued on in the same role.

Background

In October 2012, the complainant began her employment with the respondent, a telecom and electronic communications infrastructure support company. She was given a number of internal promotions and became director of marketing in October 2015. In 2017, the complainant took maternity leave and returned to work in February 2018 – during this time she had been replaced by “Mr Xa”, who continued in his employment with the company after the complainant returned from maternity leave.

On 1 November 2018, the complainant notified the company that she was pregnant, and on 14 November she was made redundant. She was “given no notice or offered any consultation in regard to her redundancy, there was no published selection process and in effect Mr Xa completely supplanted the complainant, carrying the same job title and doing the same work as done formerly by the complainant”.

The complainant contended that she had been discriminated against, contrary to the Employment Equality Act 1998 on gender/family status and especially pregnancy grounds in relation to her dismissal/redundancy.

Prima facie case of discrimination?

Adjudication Officer McEntee said the first consideration was whether a prima facie case of discrimination had been established – and that “mere assumptions” were not sufficient. He said Southern Health Board v Mitchell [2001] ELR 201 was the leading case on shifting of the burden of proof to a respondent, in which the Labour Court considered the extent of the evidential burden which a claimant must discharge before a prima facie case of discrimination can be made out.

Stating that the law where pregnancy-related dismissal was being considered was “quite clear”, Adjudication Officer McEntee said the fact of being pregnant was “sufficient grounds for a prima facie case to be made”. Accepting that a prima facie case existed, he noted that this did not mean that a case of discrimination was proven, but that the case could be considered.

Pregnancy as a discriminatory factor in redundancy?

Considering whether the complainant’s pregnancy was a determining discriminatory factor in her selection for redundancy, Adjudication Officer McEntee said the burden of proof shifted to the respondent to prove that the alleged discriminatory dismissal/redundancy was not related in any way to the pregnancy.

Considering the evidence, Adjudication Officer McEntee said it appeared that the complainant had been given no warning of the decision to make her redundant on 14 November 2018, and that no prior consultation or consideration of alternatives had been given. The complainant was one of 15 staff who were also made redundant that day. The CEO, “Mr Xd”, gave evidence that the Board had directed him to take €10 million costs out of the business and that the redundancies were a result of a series of “reorganisations”. The respondent argued that the “exception” in Article 10 of the Pregnant Workers Directive 92/85/EEC should apply (i.e. “exceptional cases not connected with their condition”).

Mr Xd said he was not aware that the complainant was pregnant during this “fraught period” – however, the complainant said that when she formally notified the company of her pregnancy on 1 November 2018, she was five-months pregnant and clearly “showing” when redundancy decisions were being made in October 2018.

Adjudication Officer McEntee said the oral evidence given by Mr Xd was “heartfelt” and that he was a very credible witness, but that, in weighing the evidence, the fact that the complainant was a highly-paid employee and the company had a very good maternity-leave scheme could not be completely ignored. He said the complainant would have been a considerable overhead to be carried in a period of radical financial retrenchment, and that he was not convinced Mr Xd and the steering committee were unaware or indifferent to the overheads likely to arise from a period of extended maternity leave. This, he said, was particularly relevant when considering Mr Xa had not been made redundant, and that this issue was never satisfactorily answered by the respondent.

In all the circumstances, Adjudication Officer McEntee was not satisfied that the respondent had established that there was no link to the complainant’s pregnancy in her inclusion on the staff exit list. He said the CEO’s pressure to keep the company afloat was not an acceptable excuse in a pregnancy discrimination case.

In accordance with section 82 of the Employment Equality Act 1998, Adjudication Officer McEntee ordered the respondent to pay to the complainant:

• €50,000 compensation for breach and infringement of a statutory right, i.e. pregnancy discrimination in regard to the redundancy.
• €5,000 compensation for the distress and upset caused to the complainant in relation to the difficulties she experienced in qualifying for statutory maternity leave as a result of the date of the discriminatory redundancy.

• by Róise Connolly for Irish Legal News