About this case:

• Citation:
  [2024] IEHC 432
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Ms Justice Mary Rose Gearty

Delivering judgment for the High Court, Ms Justice Mary Rose Gearty opined: “It is unrealistic to expect a pregnant woman, who is aware that five members of an overwhelmingly female staff are pregnant or on maternity leave, and who is herself physically ill due to her pregnancy, to negotiate with the owner of the business when she unceremoniously receives a P45. The receipt of her P45 was a dismissal, in all the circumstances, and she was not obliged to seek explanations or to go to mediation.”

Background

The plaintiff was employed by the defendant restaurant as a general assistant. On 29 July 2018, the plaintiff notified her direct manager that she was pregnant. Her direct manager passed this information onto the general manager, Mr Barnes.

Mr Barnes congratulated the plaintiff, commenting that “there must be something in the water” — a statement which all parties understood to be a reference to the fact that five of the plaintiff’s colleagues were on maternity leave at that time. The plaintiff did not make any complaint in respect of Mr Barnes’ comment, despite interpreting it as being hostile.

The plaintiff took sick leave from work temporarily thereafter as she was experiencing back pain and nausea. Following her return, on 4 September 2018 Mr Barnes met with the plaintiff and her supervisor to discuss how to address the plaintiff’s situation. The plaintiff alleged that Mr Barnes informed her of her social welfare entitlements and having spoken to a colleague, the plaintiff informed the defendant that she would take certified sick leave.

The plaintiff’s last medical certificate expired on 29 November 2018.

On 18 November 2018, the plaintiff was informed that there was an envelope for her. Upon visiting the office of the restaurant, the plaintiff’s supervisor handed her an envelope which contained the plaintiff’s P45. The plaintiff’s supervisor claimed that she did not know anything about it, and the plaintiff did not hear from anyone connected to the defendant until 18 February 2019.

The plaintiff brought a complaint to the Workplace Relations Commission (WRC) early in 2019. Upon learning of the plaintiff’s complaint, Mr Barnes wrote a letter to the plaintiff’s solicitors which failed to clarify that no P45 had issued from him or that this had issued in error. Instead, Mr Barnes suggested that the plaintiff had requested her P45, a contention that he later accepted was incorrect, and which prompted him to give evidence that he did not know what had happened.

In evidence, it emerged that a copy of the P45 had been filed with the Revenue Commissioners and that a permanent, full-time position for a general assistant had been advertised by the defendant the day after the plaintiff received her P45.

The plaintiff was successful in her discrimination claim before the WRC and the Circuit Court. Accordingly, the defendant appealed to the High Court.

The High Court

Having considered the Employment Equality Act 1998 (EEA) and focusing in particular on Article 10(1) of Council Directive 92/85/EC (the Pregnancy Directive), Ms Justice Gearty highlighted that the sole issue in the appeal before her was whether, in the circumstances, the issuing of a P45 to the plaintiff constituted a dismissal.

The judge considered the defendant’s submission that the issuing of a P45 of itself does not constitute a dismissal, finding: “While a P45 is an administrative statement of an employee’s pay and deductions for the year up to the date of termination of employment, it is easily and most readily understood as the document which, in itself, is notice that the employment itself has terminated. It is understood in popular language as such, even by those who know nothing of its legal effect and have never seen a P45, the term is understood: ‘getting your P45’ means being fired.”

Noting that Mr Barnes had discussed the plaintiff’s options with her previously, the court did not accept that it was impressed upon her that her actual job would remain open and would only be filled by a part-time employee.

The defendant submitted that the plaintiff is not entitled to treat a P45 as a dismissal without making “proper and substantive inquiry” of her employer, in line with Finnegan v. Boylan Group UD2/2001 and A General Operative v. A Packaging Company ADJ-00008541.

Ms Justice Gearty opined that “context is everything. While it was submitted that the plaintiff should have sought clarification from Mr Barnes, Ms Haragus or Ms Lungu, this is not a reasonable suggestion. Ms Haragus was not at work, Ms Lungu had already told the plaintiff she did not know anything about it, and the document had come from Mr Barnes. As that witness conceded. In those circumstances, recalling his reaction to her pregnancy, the conversation about her getting social welfare, and the arrival of a P45 with no explanation, the plaintiff took the natural inference: she had been fired.”

The judge continued: “If, as the defendant asserts, the P45 had issued in error, it was for the company to contact her and correct the record, not for her to make sure that the P45 was intended for her. It clearly was. The attempt to ‘row back’ was too little, too late. The letters did not dispel the impression that the plaintiff had been fired but attempted to lay the blame at her door. The date of cessation on the payroll, the ad for her job and the steps taken to create and circulate the P45 satisfy me that this was a deliberate decision.”

The High Court explained that the effect of the EEA is that there is a presumption that the dismissal of a pregnant woman is discrimination on grounds of gender. Finding it reasonable for the plaintiff to infer that she had been fired because she was pregnant and that inter alia there was no onus upon her to follow up on the issuing of the P45, the court concluded that the plaintiff was entitled to compensation pursuant to s.77 of the EEA.

Having considered the principles in Fox v. Lee & Anor EED036, Vereker v. Holden Plant Rentals Ltd EDA221 and Paquay v. Societe d’architectes Hoet + Minne SPRL Case-406/06 ECLI:EU:C:2007:601, ECR 1-8511 (2007), the court determined that it would make an award of €25,000 to compensate the plaintiff for the discriminatory act, noting that same was sufficient to act as a deterrent whilst being proportionate and fair.

Conclusion

Accordingly, the High Court awarded €66,501.28 and costs to the plaintiff.

Karpicz v Graham O’Sullivan Restaurants Limited [2024] IEHC 432