Kevin Langford
and Ailbhe Moloney

In December 2020 an Adjudication Officer of the Workplace Relations Commission (AO) issued his decision in the case of Yvonne O’Rourke v Minister for Defence ADJ-00007375 and DEC-E2020 granting the maximum award of compensation for gender discrimination.

The complainant was a former member of the Defences Forces who had been serving in the rank of Captain in the Air Corps. She brought three separate complaints against the Defence Forces under the Employment Equality Acts 1998-2015: (1) discrimination on the ground of gender in relation to access to promotion; (2) discrimination on the grounds of gender and family in relation to delay in processing her ill health retirement causing her financial detriment; and (3) victimisation due to the delay in processing her retirement.

The second complaint failed as she did not have a comparator, as required under Section 6(1) of the Employment Equality Acts. Although the AO held that the complainant was not estopped from bringing the second complaint (of victimisation) due to settlement of an earlier case between the parties, he found that delays in effecting her retirement did not amount to victimisation.

However, the first complaint was upheld. The complainant alleged that she was discriminated against because her two absences of work due to maternity leave were treated as the equivalent to the sick leave of a male officer. This led to a poor performance rating which impacted her ability to attend a mandatory training course that was required to make her eligible for promotion. Furthermore, she submitted that her failure to complete fitness tests was due to two pregnancies and should not have had a bearing on her access to mandatory training and by extension, to eligibility for promotion.

Internal handling of complainant’s grievance

The complainant raised a grievance internally and an officer was appointed as Military Investigation Officer (MIO) to investigate the grievance. In cross examination the MIO stated he was not aware of specific legal concepts related to discrimination including not being aware that pregnancy and maternity-related absences are not treated like ordinary sick leave for the purposes of a discrimination complaint.

Although the MIO recommended the complainant’s performance rating be raised from ‘poor’ to ‘good’ and recommended that a place on the 2015 mandatory training course should be reserved for her, he did not find that discrimination had occurred. He based this assessment on the evidence of the complainant’s supervisor, another officer who assured the MIO that he had not intended to discriminate against the complainant but the complainant’s long absences had influenced his assessment for her performance rating.

Systems failure

The AO concluded that the officers who dealt with the complainant’s grievance treated her lengthy absence from work in 2010 and 2011 like those of a male officer who had been absent for sickness and concluded that such a male officer would have received the same treatment.

In describing this as a “fundamental error” the AO commented on the section of the Defence Forces internal administrative procedures applicable to the grievance. He remarked that 1.5 pages were dedicated to sexual harassment.with only half a page covering discrimination without any mention of pregnancy-related discrimination at all. He concluded: “It seems that, even though women have been serving in the Defence Forces since 1979, the possibility of sexual misconduct exercised senior commanders’ minds much more than the notion that women could be disadvantaged or discriminated against because of pregnancy.”

The AO quoted from the section on discrimination in full and noted that the rights of pregnant women in anti-discrimination law were an “unknown unknown” in the Defence Forces.

The AO emphasised that the officers involved in dealing with the internal complaint were men of personal and professional integrity who would have done right by the complainant if instructed to do so and who had not acted intentionally. Rather, he found that there had been a major systems failure in the Defence Forces.

Finding of gender discrimination

The AO referred to “the longstanding jurisprudence from the Court of Justice of the European Union is clear that maternity leave and pregnancy-related sick leave are conditions which only women can experience, and which must not be equated with sick leave absences which a man might accrue”. He added: “Therefore any less favourable treatment based on these types of absence from the workplace is prima facie discrimination on the ground of gender”.

The AO found that due to the “uninformed actions” of management the complainant was discriminated against in access to promotion and that the Defence Forces had not rebutted the prima facie case of discrimination established by the complainant.

In doing so, he made the following orders for the Defence Forces:

• to undertake a “comprehensive review of training and information materials, instructions and local practices within the Defence Forces to ensure their compatibility with the protections pregnant personnel enjoy under antidiscrimination law”;
• to roll out a training programme for all Defence Forces personnel to be completed by 31 December 2022; and
• in accordance with the European law Von Colson principle that compensation in discrimination cases should be “adequate in relation to the damage sustained” in order to be “effective and to ensure it has a deterrent effect” to pay the complainant the maximum award under the Acts of two years’ salary of €117,814 together with interest.

This Decision clearly demonstrates that despite an employer’s best intentions, it is possible to inadvertently discriminate against employees in relation to pregnancy-related absences.

• Kevin Langford is a partner and Ailbhe Moloney is an associate at Arthur Cox.