Barry Crushell: Dismissal on pregnancy grounds
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Barry Crushell
Barry Crushell examines a recent case concerning the dismissal of a pregnant employee.
The case of Ms Abbie Walsh v Soraghan Auto Retail Limited T/A Sandyford Motor Centre (ADJ00045841) examines the circumstances under which the dismissal of a pregnant employee will be deemed to amount to a form of discrimination.
Ms Walsh, the complainant, brought a complaint under section 77 of the Employment Equality Act 1998 against Sandyford Motor Centre, the respondent, to the Workplace Relations Commission (WRC), alleging that she had been dismissed four-and-a-half months into a 12-month probationary period, having informed her line manager that she was pregnant.
Legislation and case law
Section 6(2A) of the 1998 Act also provides protection for pregnant workers against less favourable treatment in the workplace.
It provides: “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 employee is treated, contrary to any statutory requirement, less favourably than another employee is, has been or would be treated.”
Irish law provides robust protection to women who have been dismissed for any reason related to pregnancy in accordance with its obligation in European law. It is well established in case law that pregnancy is “a special protected period” and the Labour Court has found that only “the most exceptional circumstances not connected with the condition of pregnancy allow a woman to be dismissed while pregnant”. The rationale for this approach is evident from the decision of C-232/09 Danosa v. LKB Lizings SIA [2011] CMLR 45, at 60, the court held as follows:
“It is precisely in view of the harmful effects which the risk of dismissal may have on the physical and mental state of women who are pregnant, have recently given birth or are breastfeeding, including the particularly serious risk that women may be prompted voluntarily to terminate their pregnancy, that, pursuant to Article 10 of Directive 92/85, the EU legislature provided for special protection for women, by prohibiting dismissal during the period from the beginning of pregnancy to the end of maternity leave.”
In the case of Dekkar v. Stichting voor Jong Volwassenen (VJV-Centrum) [1990] ECR 1-3941, the European Court of Justice held that since pregnancy is a uniquely female condition, less favourable treatment on the grounds of pregnancy constitutes discrimination on the grounds of gender.
Section 85A of the Acts provides for the allocation of the probative burden between a complainant and a respondent in cases coming within its ambit. In the matter of Mitchell v. Southern Health Board [2001] ELR 201, the Labour Court held that:
“The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.
“It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the Respondent to prove that there is no infringement of the principle of equal treatment.”
However, it is now well established that the existence of the pregnancy itself is sufficient to shift the burden of proof to the employer to prove that a dismissal of a pregnant employee was not on grounds of pregnancy. The fact of pregnancy is the “primary fact”.
In effect what this means is for an employer to dismiss a woman during her pregnancy, regardless of the reason for that dismissal, they must have duly substantiated reasons for the dismissal provided to the employee in writing and these reasons must be substantial as held by the Labour Court in Assico Assembly Limited as cited in the complainant’s legal submission above.
In relation to this burden of proof in matters involving a specific allegation of pregnancy-related dismissal I note the following extract from Bolger Bruton and Kimber, Employment Equality Law (Round Hall Press, 2012):
“The case law on burden of proof in cases of alleged pregnancy dismissal has developed in a singular manner due to the particular provisions of the Equal Treatment and Pregnancy Directives. It is now well established that the existence of the pregnancy itself is sufficient to shift the burden of proof to the employer to prove that a dismissal of a pregnant was not on the grounds of pregnancy.”
In the matter of Teresa Cross (Shanahan) Croc’s Hair and Beauty -AND- Helen Ahern [EDA 195] the Labour Court set out at considerable length its understanding of the legal protections for pregnant women as follows:
“Since the decision in Dekker the protection afforded to pregnant women in employment has been strengthened considerably in the case law of the CJEU and in the legislative provisions of the European Union. Equality on grounds of gender is now expressly guaranteed by Article 23 of the Charter of Fundamental Rights of the European Union.
“The Charter is now incorporated in the Treaty on the Functioning of the European Union (the Lisbon Treaty) and has the same legal standing as all preceding and current Treaties. It can thus be properly regarded as part of the primary legislation of the European Union.
“The jurisprudential principle that discrimination on grounds of pregnancy constitutes direct discrimination on grounds of sex is now codified in Directive 2006/54/EC on the Principle of Equal Treatment of Men and Women (the Recast Directive). This Directive provides, at Article 2.2 (c), that any less favourable treatment of a woman related to pregnancy or maternity leave within the meaning of the Directive 92/85/EEC constitutes unlawful discrimination for the purpose of that Directive.”
The Labour Court in Teresa Cross cites extensively from case 406/06 Paquay v. Societe d’architectes Hoet + Minnie SPRL [2007] ECR 1-8511.
The Labour Court held in Teresa Cross that the court in Paquay “pointed out that in accordance with its case law the prohibition of less favourable treatment, on grounds of pregnancy comes within the ambit of both the Equal Treatment Directive and the Pregnancy Directive”.
The importance of providing real and effective redress in cases where the rights of pregnant workers are infringed was emphasised by the court at pars 45-47 of its judgment in Paquay. Here the court said:
- However, the objective is to arrive a real equality of opportunity and cannot therefore be attained in the absence of measures appropriate to restore such equality when it has not been observed. Those measures must guarantee real and effective judicial protection and have a real deterrent effect on the employer (Marshall, paragraph 24).
- Such requirements necessarily entail that the particular circumstances of each breach of the principle of equal treatment should be taken into account. Where financial compensation is the measure adopted in order to achieve the objective previously indicated, it must be adequate, in that it must enable the loss and damage actually sustained as a result of the discriminatory dismissal to be made good in full in accordance with the applicable national rules (Marshall paragraphs 25 and 26).
- It is necessary to recall that, in accordance with Article 12 of Directive 92/85, Member States are also bound to take the necessary measures to enable all workers who consider themselves wronged by failure to comply with the obligations arising from that directive, including those arising from its Article 10, to pursue their claims by judicial process…
- While recognising that the Member States are not bound, under Article 6 of Directive 76/207 or Article 12 of Directive 92/85, to adopt a specific measure, nevertheless the fact remains, as is clear from paragraph 45 of the present judgment, that the measure chosen must be such as to ensure effective and efficient legal protection, must have a genuine dissuasive effect with regard to the employer and must be commensurate with the injury suffered.”
In summary the Labour Court in Teresa Cross held as follows:
“It is abundantly clear from these authorities, and from the legislative provision of the European Union, that women are to be afforded special protection from adverse treatment on account of their condition from the commencement of their pregnancy to the end of their maternity leave. The entitlement to that protection is to be regarded as a fundamental right within the legal order of the Union which the Courts and Tribunals of the Union must vindicate within the limits of their jurisdiction. It seems equally clear that where a pregnant woman is treated adversely because of her condition during this period of special protection the employer bears the burden of proving, on cogent and credible evidence, that such treatment was in no sense whatsoever related to her pregnancy….
“An analysis of the prohibition of any pregnancy-related dismissal can be seen in the decision of the Equality Tribunal in O’Brien v Persian Properties t/a O’Callaghan Hotels where the Equality Officer relied on the decisions of the Court of Justice in Dekker, Webb and Brown in confirming that pregnancy is ‘a special protected period’ and pointed out that the Labour Court had found that only the ‘most exceptional circumstances not connected with the condition of pregnancy allow a woman to be dismissed while pregnant’.”
In the case of Assico Assembly Ltd v Corcoran EED 033/2003, the Labour Court held: “Where the employee is dismissed while pregnant or on maternity leave, both legislation and case law states that the employer must show that the dismissal was on exceptional grounds not associated with her pregnancy and such grounds, in the case of dismissal, as a matter of law and in the case of discrimination as a matter of good practice should be set out in writing.”
The respondent simply has not complied with any of its legal obligations in this regard.
In Emma Rooney v Nomos Productions ADJ-00039520 (12/07/2023), an employer had dismissed a pregnant worker and made reference to the worker’s ‘style’, ‘synergy’ and not being the ‘right fit’ when dismissing her. The employer had also, however, told the pregnant worker that she had done nothing wrong.
The adjudicator criticised the language used by the respondent in dismissing the claimant, noting: “Such imprecision of language can often be used to provide the cover needed to mask acts of discrimination. Where discrimination is being practised a perpetrator is unlikely to tell the victim openly that is what is happening and will normally resort to such euphemisms.”
The adjudicator in Emma Rooney found that a prima facie case of discriminatory dismissal had been made out. The adjudicator highlighted the requirement of Article 10.2 of Pregnant Workers Directive that an employer “cite duly substantiated grounds for her dismissal”, noting: “The word ‘substantiated’ is important here. Thus, a statement outlining the grounds containing the sort of vague clichés used by the respondent at its final meeting with the complainant would be unlikely to comply with this requirement that an employee be given.”
While the WRC determined in Emma Rooney that the claimant had not been dismissed on the grounds of her pregnancy (and therefore did not uphold the main complaint), it did determine that the respondent failed to comply with the requirement to notify the complainant in writing of the grounds for the dismissal and awarded the complainant €10,000 for this failure.
Decision
Ultimately, the adjudication officer in Abbie Walsh decided that the complainant had been dismissed by the respondent in part due to her pregnancy.
The adjudication officer determined that “while it is the respondent’s position that the dismissal occurred as a result of the complainant’s underperformance, the evidence as presented does not credibly or cogently demonstrate that this was the sole reason for the complainant’s dismissal”.
Takeaway
The takeaway for employees considering bringing a complaint under section 77 of the Employment Equality Acts 1998 on the grounds of discriminatory dismissal due to pregnancy is to determine if there are any other substantive reasons that an employer may utilise in defending such a charge.
For employers, it will be necessary to demonstrate that the termination of a pregnant employee was wholly unrelated to the pregnancy of that employee.
- Barry Crushell is principal solicitor at employment law specialist firm Crushell & Co.
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