Gender – Because Your Employment Matters

SO YOU HAD A BABY…
CONGRATULATIONS!

And you took your maternity leave because that’s what you’re entitled to do. But then throughout that maternity leave you were stuck dealing with a whining, crying needy little brat with no respect for your time or space. That’s right… your boss!

If you were mistreated on your maternity leave, coming up to it or upon returning from your it, it’s time to stand up for yourself and for your family. We specialize in taking action against employers for discrimination in the workplace, in particular in gender discrimination cases.

We want you to get what you’re owed and your employer to get what they deserve! If you want that as well, call us today at 1890 88 90 90 .

Our State recognises the crucial role played by mothers of newly born children in our society. That’s a fundamental and the most basic tenet of any civilised society and that is why it is reflected in our law. Employment Equality laws bind all employers into providing certain rights and entitlements to expectant mothers and new parents.

This is a wonderful thing. Unless employers decide to ignore the rights afforded to employees when it comes to maternity leave, of course, but that’s where we come in.

“What we keep hearing in this country is a lot of guff about ‘women’s rights’. We hear calls for more women in the Boardroom, more women in Politics, breaking the glass ceiling, yet what could be a truer or simpler value than to make sure that women who want to work, who have children or are expecting a child have gainful employment and are not treated unfairly just because of childbirth?”

Christine McDermott, 32, Mother of two

Here’s how this works in practice…

When our Client Christine learned she was pregnant, it should have been cause for celebration. Instead, she found herself unemployed. The story goes like this:

In mid-2014, Christine, was working as a care assistant in Waterford with a well-known Irish employment agency.

During her time with the Agency she was always well thought of and extremely busy – Christine could work upwards of 45 hours a week and there was never a shortage of work to go around. Two months later, Christine, discovered the happy news that she was expecting her first she child. Overjoyed with the good news, she told her employer. Then things changed dramatically.

But, her employer didn’t apparently quite see Christine’s good fortune in the same way. Two days after sharing the news, she stopped getting hours at work. Because of her pregnancy she eventually lost her job. All of a sudden, wouldn’t you know it, Christine was surplus to requirements. Her hours were significantly reduced and ended up drying up altogether. Nothing else had changed, her co-workers were still rushed off their feet and staff who had been recruited after her continued to work full-time hours. All that had changed was that Christine was expecting a baby. Christine eventually resigned in frustration and hurt and came to us for help.

“The most upsetting thing is that I was good at my job, I loved my work and they took that away from me, for what?”

What could be more vile and disgusting?
In a job where she had been performing not just well, but in fact great. In which her clients loved her and she always exceeded the expectations of her employer. Suddenly she could do nothing right. They began focusing on every negative little thing, subjecting her to undue and unfair scrutiny and saying things about her work which were downright lies.

We lodged a claim on Christine’s behalf with the Workplace Relations Commission. We drafted written submissions for her and attended her hearing with her in Carlow. There we directly challenged Christine’s employer on her behalf. We put it up to them that what they had done was not just illegal but unfair and revolting. Our detailed written submissions outlined how the manner in which she was treated affected her and what should be done about it.

Her former employer fought their corner. They argued that none of this was because of Christine’s pregnancy and that this was all coincidental. It was all a big mistake! The work according to them had simply dried up! They said that the changes resulted from a realisation internally that Christine was not sufficiently qualified to do certain tasks.

In fact, Christine did have the qualifications she needed, but even if she didn’t, this had never been a concern prior to her pregnancy and didn’t appear to be a problem for her former work colleagues. Maybe Christine had overnight become really bad at her job? We said that this was complete nonsense and the adjudicator agreed with us.

“I am so so grateful to the guys at Employment Matters, I certainly couldn’t have done this on my own. Don’t let your employer get away with discriminatory treatment, you too can get redress.”

The Adjudicator awarded Christine €17,500.
Money she used to set up a new business and start a new life, vindicated and able to put this whole experience behind her… Every cloud has a silver lining! Christine now runs “Boobalicious” a lingerie and women’s underwear store in Waterford city!

Discreet consultation on your pregnancy and employment rights

“You know, it wasn’t about the money. When I was let go by my former employer simply because of my pregnancy I was just so devastated that someone could act like that and just wanted them to realise they can’t treat people in this way.”

-Christine McDermott, 32, Mother of two

What we can do for you?

Why let them treat you this way? It is always unacceptable. Not in jest, it’s not banter, it is always insulting and embarrassing.

We can ensure that your rights are protected at this special time in your life, allowing you to focus on your child, your health, and your family and in time, on getting back to work.

Shocking as it may seem in the 21st Century, but there are far too many instances when a new Mum returns to work after having a child only to find her job is no longer available.

It could be the employer expects them to resume working in a different, less favourable role, or it could be the employer has gone so far as to dismiss her outright just simply because her absence was inconvenient (essentially for having a child!).

The words that can be used to describe these two scenarios range from outrageous to audacious to mindboggling, and most certainly include completely unlawful and in breach of your Employment Rights.

We’re here to help.

REQUEST A FREE CONSULATION

What are your rights?

We are passionate about protecting the rights of new parents.

The State recognises the crucial role played by parents of newly born children in our society. This is reflected in law, which binds all employers into providing certain rights and entitlements to expectant and new parents.

Shockingly, sometimes parents returning to work after having a child will be faced with the unacceptable situation where their job is no longer there for them. Perhaps the employer expects them to resume working in a different and less favourable role. Employers sometimes go so far as to dismiss an employee because of their pregnancy. Such scenarios are unlawful and in breach of your Employment Rights. At Employment Matters we can help!

Mothers who become pregnant enjoy the most extensive rights. They’re supposed to, at least.

When your maternity leave comes to an end, you are entitled to return to work with your employer. You are entitled to the return to the same job as well as benefiting from any improvements to the terms and conditions of that job, such as pay rises, that would have occurred during the period of your maternity leave.

The Employment Equality Act is the Irish law designed to ensure that employees cannot be discriminated against on the grounds of gender. Pregnancy discrimination of the type described above constitutes gender discrimination under that Act and if you have been treated unfairly or less favourably because of your pregnancy you could be entitled to redress under these Acts.

This includes situations where you have been dismissed or overlooked for a promotion due to your pregnancy or where your employer has refused to consider your request for flexible hours and/or a job share arrangement upon returning to work (that might constitute discrimination because of your family status).

This may also include situations where you are refused a contract of employment or a renewal of a fixed term contract of employment due to the pregnancy. The Act also provides protection from discrimination on the grounds of ‘Family Status’ which prevents your employer from discriminating against you by virtue of the fact that you have children.

We can advise you on what steps you should take in order to ensure your rights are protected.

About us

We are Employment Law specialists.
This means that when you come to us, you get advice
from experts in Employment Law, not general practitioners who may not be up to speed
with the complexities of this fast-changing area of law.

LEGAL ADVICE

We can advise you as to your rights when you are expecting a child and how best to ensure that your employer respects these rights. If you are in the unfortunate position that your employer has treated you unfairly, we act for many clients in the exact same position as you. We will ensure that you get what you deserve

Guidance & Support

We have proven success negotiating the prompt settlement of claims and we ensure your pay-out meets or exceeds equivalent compensation claims. We provide guidance and support so you understand the claims process, and we act in an open and transparent manner so you keep control of your claim.

Get in touch

We are passionate about protecting the Employment Rights of new parents. Whether you are seeking general advice regarding your Employment Rights when you are expecting a child or if you are concerned that your rights may have been infringed, it is important to take action now.

Email Us:info@employment-matters.ie
Call Us:1890 88 90 90

If you are considering bringing a claim, there is a general 6-month time limit for referring complaints to the
Workplace Relations Commission. Even if you are simply seeking to ensure that you receive your entitlements going
forward, there may be an obligation on you to notify your employer in writing.

Call us today on 1890 88 90 90 for hassle free advice or click here and we will respond by email within 48 hours or Complete the Enquiry form, and Get no-obligation, FREE advice on your employment rights!

what to do next

Six month time limit

You must move quickly as there is a six-month time limit on taking a claim, and no one wants to see an unlawful employer get away with one.

Call us now

Call us now on 1890 88 90 90 for a free no-obligation consultation or to arrange an appointment with us to review your case. Don’t put up with this type of treatment. Make sure your employer knows you won’t tolerate it. We’ll hold the megaphone, you make your voice heard.

Take Action

Whether you are seeking general advice regarding discrimination at work when you are expecting a child or if you are concerned that your rights may have been infringed, it is important to take action quickly.

The Law – The Boring (but Important) Stuff

…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.

Discrimination on the grounds of pregnancy part of the gender ground

Discrimination on grounds of gender, in particular pregnancy, and family status is expressly prohibited under Irish and European Law. The Employment Equality Act 1998 outlines what is considered discrimination under the Act. The Acts state:

The case law of the European Court of Justice is quite clear when it comes to gender and pregnancy. In Dekker v Stichting Vormingscrentrum voor Jong Volwassen ECJ C177/88, [1990] E.C.R. 1 3941 the Court of Justice held that unfavourable treatment because of pregnancy is by definition direct discrimination on the grounds of sex.

Furthermore, in Browne v Rentokil [1998] ER 791 the European Court of Justice held that the entire period of pregnancy and maternity leave is a specially protected period during which both the Equal Treatment Directive 76/207 and the Pregnancy Directive 92/85 prohibit pregnancy related dismissal on grounds of equality.

Particular protection against discrimination during pregnancy

Since the decision in Dekker the protection afforded to pregnant women in employment has been significantly bolstered throughout both case law and legislation.

Further, the principle identified in Dekker, that discrimination on the grounds of pregnancy constitutes direct discrimination on the grounds of gender is now set out in Directive 2006/54/EC on the Principle of Equal Treatment of Men and Women (the Recast Directive).

This Directive provides that any less favourable treatment of a woman related to pregnancy or maternity leave within the meaning of Directive 92/85/EEC constitutes unlawful discrimination for the purpose of that Directive.

The Pregnancy Directive further sets down the legislative regime wherein special protection is afforded to the safety health and welfare of pregnant women in employment. The Directive provides as follows

In order to guarantee workers, within the meaning of Article 2, the exercise of their health and safety protection rights as recognised under this Article, it shall be provided that:

“Member States shall take the necessary measures to prohibit the dismissal of workers, within the meaning of Article 2, during the period from the beginning of their pregnancy to the end of the maternity leave referred to in Article 8 (1), save in exceptional cases not connected with their condition which are permitted under national legislation and/or practice and, where applicable, provided that the competent authority has given its consent.”

If a worker, within the meaning of Article 2, is dismissed during the period referred to in point 1, the employer must cite duly substantiated grounds for her dismissal in writing;

“Member States shall take the necessary measures to protect workers, within the meaning of Article 2, from consequences of dismissal which is unlawful by virtue of point 1.”

In interpreting the above article it is important to have cognisance of the underlying rationale for the prohibition of dismissal on grounds of pregnancy, which can be drawn from recital 15 of the Directive which provides:

“Whereas the risk of dismissal for reasons associated with their condition may have harmful effects on the physical and mental state of pregnant workers, workers who have recently given birth or who are breastfeeding; provision should be made for such dismissal to be prohibited.”

The case of Danosa v LKB Lizings C-232/09 recognised the importance of the above-mentioned provision where the Court noted that;

“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 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 maternity leave.”

The Equality Tribunal and Labour Court have recognised the importance of deterring such discrimination in its decisions. In the case of O’Brien v. Persian Properties trading as O’Callaghan Hotels (DEC-E2012-010) the compensation awarded took into account the need to dissuade employers from this type of discrimination. In this case the claimant had been warned that her employment would be terminated when she had a third child. The claimant subsequently fell pregnant and the respondent requested that she take voluntary redundancy. The Equality Tribunal found that there had been harassment and discriminatory dismissal and further found victimisation had occurred. The Tribunal held that redress must be proportionate to the claimant’s salary. It further held that:

“The award must also dissuade O’Callaghan hotels and other employers from unlawful discrimination.”

These decisions along with decision of the Labour Court and Equality Tribunal, and Directive 92/85 make it clear that women who are pregnant are to be afforded special protection in employment and cannot be dismissed save in exceptional circumstances unrelated to their pregnancy.

In light of the foregoing legislation and the case-law, where an employee is dismissed while pregnant or on maternity leave, 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.

Pregnancy Discrimination

It is well established that discrimination based on pregnancy comes within the remit of gender based discrimination. This is expressly provided for in s.6(2A) of the EEA which 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 or would be treated.”

This section was inserted into the EEA by the 2004 Act which placed on a statutory footing the decision of the ECJ in Dekker v Stichting Vormingscentru voor Jonge Volwassen (C-177/88) [1990] ECR I-13941 where the ECJ stated:

“it should be observed that only women can be refused employment on grounds of pregnancy and such refusal therefore constitutes direct discrimination on grounds of sex. A refusal of employment on account of the financial consequences of absence due to pregnancy must be regarded as based, essentially, on the fact of pregnancy. Such discrimination cannot be justified on grounds relating to the financial loss which an employer who appointed a pregnant woman would suffer for the duration of maternity leave.”

Importantly, Dekker confirms that discriminatory acts relating to pregnancy are directly discriminatory on the gender ground and that pregnancy cannot be compared to either sickness in a man or a non-pregnant woman. Indeed, the Court found that since pregnancy is a uniquely female condition, where a woman experiences unfavourable treatment on grounds of pregnancy, such treatment constitutes direct discrimination on the grounds of gender within the meaning of the Equal Treatment Directive, even though there is no male comparator. In Limerick City Council v Carroll [2009] ELR 257 , the Labour Court stated:

“It has also been made clear by the Court of Justice that since pregnancy is a uniquely female condition less favourable treatment on grounds of pregnancy constitutes direct discrimination on grounds of gender.”

Section 26(1) of the Maternity Protection Act 1994 provides:

“on the expiry of a period during which an employee was absent from work while on protective leave, the employee shall be entitled to return to work … in the job which the employee held immediately before the start of that period.”

In their book Employment Equality Law (2012), the authors Bolger, Bruton and Kimber state:

“Any unfavourable treatment of an employee on grounds of their pregnancy will be unlawful direct discrimination. That protection extends to any unfavourable treatment that relates in any way to the pregnancy.”

Repeatedly, the Equality Tribunal has found that any departure from the above entitlement constitutes direct discrimination of the woman concerned on the ground of gender. For example, in Grainne Campbell v Bank of Ireland Private Banking DEC 2013-046 , the complainant alleged gender based discrimination as a result of her taking a period of maternity leave and, upon returning to work, discovering that she had been demoted. The Equality Officer noted the situation regarding a woman returning to work as set out above and held that any departure from same constituted direct discrimination on the gender ground.

In O’Brien v Persian Properties Limited [2012] ELR 211 it was held that ‘belligerent’ responses from the employer in relation to working a four-day week amounted to harassment under the Acts.

Burden of proof

In general, in order for a complainant’s allegation of discrimination to be upheld under the Acts, a complainant must show prima facie evidence of the discrimination. Once a prima facie case is established the burden of proof falls on the respondent to show that discrimination did not take place or that it could be objectively justified.

The Labour Court in this jurisdiction considered this evidential burden in Southern Health Board v Mitchell [2001] E.L.R. 201 and concluded as follows:

As ever Section 85A of the Acts provides that:

“Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.”

In O’Higgins v UCD [2013] ELR 146, the Labour Court stated:

“Section 85A of the Act provides that where facts are established from which discrimination can be inferred the onus of proving the absence of discrimination, on the normal civil standard, rests on the respondent. In A Worker v A Hotel [2010] E.L.R. 72 at page 81 this Court held as follows in relation to the application of this provision:”

“The test for applying that provision is well-settled in a line of decisions of this Court starting with the determination in Mitchell v Southern Health Board [2001] E.L.R. 201. That test requires the complainant to prove the primary facts upon which he or she relies in seeking to raise an inference of discrimination. It is only if this initial burden is discharged that the burden of proving that there was no infringement of the principle of equal treatment passes to the respondent. If the complainant does not discharge the initial probative burden which she bears, her case cannot succeed.”

“The type or range of facts which may be relied upon by a complainant can vary significantly from case to case. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference or presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence.”

“At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts (see the determination of this Court in McCarthy v Cork City Council Labour Court Determination EDA0821, December 16, 2008).”

The rationale for this approach was explained by the Labour Court in Ntoko v Citibank [2004] ELR 116:

“This approach is based on the empiricism that a person who discriminates unlawfully will rarely do so overtly and will not leave evidence of the discrimination within the claimant’s power of procurement. Hence, the normal rules of evidence must be adapted in such cases so as to avoid the protection of anti-discrimination laws being rendered nugatory by obliging claimants to prove something which is beyond their reach and which may only be in the respondent’s capacity of proof.”

The burden of proof which must be satisfied by the Complainant was summarised in Minaguchi v Wineport Lakeshore Restaurant DEC-E2002-020 as follows::

“It appears to me that the three key elements which need to be established by a complainant to show that a prima facie case exists are (i) that s/he is covered by the relevant discriminatory ground(s), (ii) that s/he has been subjected to specific treatment and (iii) that this treatment is less favourable than the treatment someone, who is not covered by the relevant discriminatory, has been or would be treated.”

The connection between the discriminatory ground, and the alleged discriminatory acts is not to be established by way of motive or intention, but rather from objective facts that infer discrimination. It has been established that re-assignment of roles can constitute direct discrimination (e.g. An Employee v A Broadcasting Company [2012] ELR 88).

It has been established that the treatment of a Complainant following her return or attempted return from sick leave may carry weight in the determination of whether a Complainant was directly discriminated against on the ground of disability. In A Worker (Mr O) v An Employer (No. 2) [2005] ELR 132 the Labour Court found that the Employer had failed to treat the Employee in a sympathetic manner upon his return to work from a psychiatric illness and was instead intent on making his working life difficult. On this basis, the Labour Court upheld the Complainant’s claim for constructive dismissal, despite the Complainant never having raised the Respondent’s grievance procedure.

Harassment is prohibited pursuant to section 14 of the Acts as discrimination in relation to the conditions of employment.

SECTION 14.7(B) PROVIDES THAT:

“Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.”

In both cases the unwanted conduct may include acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.

Sexual harassment or harassment of an employee is discrimination by the employer. It is however a defence for an employer to prove that the employer took reasonably practicable steps to prevent the person harassing or sexually harassing the victim or (where relevant) prevent the employee from being treated differently in the workplace or in the course of employment (and to reverse its effects if it has occurred).

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SO YOU HAD A BABY… CONGRATULATIONS!