Employment law solicitor Richard Grogan of Richard Grogan & Associates Solicitors writes on a case involving pregnancy-related dismissal.

The case of Wrights of Howth Seafood Bars Limited and Dorota Murat EDA1728 involved an issue of a pregnancy related dismissal.

The Labour Court in this case reviewed the law. The Court reviewed the case of C-177/88 Dekker v. Stichtilng Vormingcentrum, where the Court of Justice had made it clear that since pregnancy is a uniquely female condition, any adverse treatment of a woman on grounds of pregnancy is direct discrimination on grounds for sex. The Court pointed out that the dismissal on the grounds of pregnancy constitutes discrimination on the grounds of gender and cannot be justified. The Court pointed out that the dismissal of a pregnant woman is sufficient to raise in inference of discrimination on the grounds of gender.

The Court also pointed out that gender is expressly guaranteed in article 23 of the Charter of Fundamental Rights of the European Union and that the charter was incorporated the prohibition of dismissal on grounds of pregnancy established in the Jurisprudence of the CJEU. The Court pointed out that the Charter is now incorporated in the treaty on the functioning of the European Union and has the same legal standing as all proceeding and current treaties and can be regarded as part of the primary legislation of the European Union.

The Court has set out the case of C-232/09 Danosa – LKB Lizings, where the Court said:

“It is precisely the 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 pregnant 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 the maternity leave”

The Court pointed out that article 10 does not provide for any exception to or derogation from the prohibition save in exceptional cases not connected with her condition and importantly pointed out that it was provided that the employer gives substantial ground for the dismissal in writing.

The Court pointed out that section 85A of the Act provides that the allocation of the probative burden as between the employer and the employee comes within its ambit. It is that the complainant bears the initial burden of proving facts from which discrimination can be inferred. If those facts are established then the onus passes to the employer.

The Court pointed out where the probative burden shifts, the Respondent must show a complete dissonance between the discriminatory grounds relied upon and the impugned conduct or omission. The Court referred to the case of Wong v. Igen Limited, being a decision of the Court of Appeal of England and Wales where Peter Gibson LJ pointed out that where the Respondent fails to show that the discriminatory ground was anything other than a trivial influence in the impugned decision, the complaint will be made out.

The Court pointed out that in case EDA821 Ciara McCarthy v. Cork City Council, at the initial stage the complainant is merely seeking to establish a prima facia case. It is not necessary to establish that the conclusion discrimination is the only or indeed the most likely explanation which can be drawn from the facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts. The Court pointed out that the decision to dismiss the complainant and the manner of the implementation were seriously lacking in adherence to its own disciplinary procedures as outlined in the complainant’s conditions of employments. The complainant was given no warning she was simply informed that her employed was terminated following a request by her for a meeting to discuss her concerns. The employee was given no opportunity to make representations on her own behalf.

The Court pointed out as the Court had found in similar circumstances in Trailer Care Holdings Limited determination EDA 128 that no reasonable employer acting bone fide would have behaved in such a manner. The Court also pointed out that no substantive grounds for the dismissal were given by the Respondent in writing in contract to article 10 of the directive. An award of €15,000 was made.

This is an extremely important decision for employers and those advising employers to read. There is a significant review of the legislation. This is a matter where previously a higher award had been made by the AO initially.

One of the issues in such cases is the level of awards made. Women who are pregnant are particularly vulnerable. Losing their job at that period of time can create serious financial consequences. The issue is always going to be what is the level of compensation for the breach itself and what is the persuasive element. Unfortunately, decisions of the WRC and Labour Court do not specify these as separate and distinct elements which, we believe, they are. The award against a small employer, as regards the persuasive element, would normally be lower than against a larger employer on a simple rationale.

This is no criticism of the WRC or Labour Court but pregnancy related dismissal is such a serious breach of a fundamental right which is specially protected we do believe the issue of the persuasive element does need to be set out.