Richard Grogan

The Labour Court, in a recent case of Akina Dada Wa Africa and Claudia Horeau UDD/18/237, determination number UDD216, dealt with a reasonably novel but important issue.

The facts in this case which were under consideration was whether, where an employee goes on maternity leave and their contract is a fixed-term contract and, during their maternity leave, the contract expires and is not renewed, this amounts to a dismissal under the unfair dismissal legislation.

The evidence was that the respondent continued to communicate with the complainant after the expiry date in her contract and it was contended that they regarded her as an employee and in effect her contract of employment was extended.

The respondent relied on section 10 (2) of the Maternity Protection Act 1994 and contended that there was no protection in relation to same and contended that section 10 (2) of the Act is consistent only with the termination of a contract being the expiry of the fixed term and was unaffected by the Act.

The respondent quoted the case of Marketing Executive –v- Performance Arena ADJ-00011576 where the adjudication officer held that paragraph (a) of that subsection simply provides that the day on which the term expires is a day in the employee’s maternity leave being that they are on maternity leave when they are dismissed. Paragraph (b), they contended, of that subsection provides it shall not affect the termination of the employee’s employment.

The court in this case went through the legislation in detail.

The provisions of section 1 were set out, being the definition of a dismissal. The provisions of section 10 of the Maternity Protection Act were set out. The court said it was a fact that for a complainant to enjoy the protection of the Unfair Dismissal Act 1977, there must be a contract of employment in place at the date of the alleged dismissal.

The court pointed out, on a literal reading of section 10 (2) of the 1994 Act, it makes it clear that the fact that an employee is on maternity leave does not have the effect of altering the expiry date of a contract itself. The court held that this was consistent with the ruling in Melgar – Ayuntamiento De Los Barrios Case C-438/99 which related to the application of Council Directive 92/85.

The court pointed out a relevant case in Irish law is a case of McBrierty –v- NUI Galway EDA091 which held that the non-renewal of a fixed-term contract of a pregnant employee cannot be regarded as a dismissal within the meaning of the Directive.

The court pointed out that the parties made a joint submission to the Court and drew attention to the case of Assisco Assembly Limited –v- Corcoran EED033/2003. The main feature was to determine that, in a case where pregnancy-related dismissal is an issue, the onus of proving an absence of discrimination rests with the employer. The court pointed out that that case was of little value to the court in determining the preliminary issue which the court must consider.

In this case, the court said that it is a legal fact that the complainant’s maternity leave had no effect on the expiry date of her employment contract. The court did point out that it had to consider what happened subsequent to that date to determine if the contract was extended by the parties. The court pointed out that it was accepted by the respondent in that they continued to believe that the contract was extended by virtue of the complainant’s maternity leave. For this reason the respondent continued to communicate with the complainant and to act as if she was an employee in the period between 1 January 2017 and June 2017.

The complainant contended that if it was the intention simply to extend the contract for this period, this was never communicated to her and that she had every reason to believe her contract was being extended and remained in place. The court said it was clear there were issues between the parties and it was obviously not the desire of the respondent to have the employment relationship continue.

The court said the question was whether, by their actions, the respondent gave effect to an extension of the contract.

The court pointed out that the respondent did not seek to extend the contractual relationship any longer than they believed was required of them. The court pointed out there is no doubt that they were mistaken in law and continued to act as if the complainant was an employee after the expiry date of her contract and up to the end of her maternity leave. The court pointed out that it was noteworthy that the respondent ceased to communicate with the complainant as if she was still an employee after her maternity leave expired and that the P45 was dated June 2017, when the maternity leave ended.

The court pointed out that nothing done by the respondent in that period could be interpreted reasonably to mean that the complainant continued to have an open-ended contract beyond the end of her maternity leave.

Our note in relation to this is that there is a view by some employers, mistakenly, that where a fixed-term contract is ending, and the employee does not have a right to a contract of indefinite duration by virtue of the provisions of the Fixed Term Work Act, that in those circumstances that the employee must continue in employment to obtain maternity benefit from the State. This is incorrect. There is no requirement for the employee to be maintained in employment for the purposes of maintaining their rights to maternity pay from the State.

In this case it was clear that the actions of the employer were such that the employee did not obtain the protection of the Act. If communications had been different, then the employee may well have.

Where an employer has a an employee going out on maternity leave and a fixed-term contract is due to expire, it is very important that the employer gets appropriate advice, particularly as regards communicating with the employee during the maternity leave so as to avoid these type of cases arising.

• Richard Grogan is a partner at Richard Grogan & Associates Solicitors.