ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00019285
John Cashell Cashell Solicitors
Mairead Crosby IBEC
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977
Date of Adjudication Hearing: 18/10/2019
Workplace Relations Commission Adjudication Officer: Caroline McEnery
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
The Complainant commenced work as a Care Worker on 4 December 2017 on a 39 hour week and ceased employment on 29 September 2018.
The question of service was initially considered and the Complainant said she started in January 2017 with the Agency and she was invited to apply for relief role which started on 4 December 2017 and was due to terminate on 1 June 2018 but was told there was maternity leave role and she was offered the job for the cover from 4 December 2017. There was no termination date on that maternity leave contract which was a 39 hour contract for specified purposes. The Care Services representative stated the current contract commenced on 4 December 2017.
Summary of Complainant’s Case:
In July 2018 the Complainant was working with client (A) and his sister came to visit and asked to speak to the Manager and was unaware there was now an Acting Manager. The Complainant did not realise there was a new Acting Manager and was shocked she wasn’t told.
The Acting Manager rang the Complainant and was very cross on the phone with her for telling the client’s sister she was the Acting Manager and it wasn’t her place to do so. The Complainant was very upset and was crying so she left her shift.
The Acting Manager tried to call the Complainant but she didn’t answer her phone as she was so upset. Other staff members also called the Complainant.
The Complainant was supposed to be at work but The Acting Manager put her down for leave as she was finding the pressure too much.
The Complainant spoke to one of the staff Members and she asked her to go in to chat to herself and The Acting Manager before the staff meeting.
The Acting Manager apologised to the Complainant for saying it to the client’s sister and she apologised for over reacting on the phone and hugged her. The Acting Manager then asked her if there was anything she could do to make things easier for her as she was a great worker and she didn’t want to loose her.
The Acting Manager then offered the Complainant 27 hours with Community Worker role and responsibilities to cover for another employee who was leaving. She was delighted about this.
The Acting Manager and the Complainant went straight into the team meeting next and The Acting Manager announced the Complainant was appointed into this role and lots of people were at this meeting when she made this announcement. The Complainant has witnesses who will confirm this.
The Complainant received her FIS form and completed it and HR stamped it for her on the 27 hour contract. The Team Leader congratulated her for getting her 27 hour contract.
On 23 August 2018 all staff had 1 to 1 supervision meetings. The Complainant had her meeting with the Team Leader that afternoon. The Complainant said everything was fine and the Team Leader (R) said congratulations and the Complainant asked on what and the Team Leader said your contract is finally through. The Complainant then told the Team Leader she had just found out she was pregnant and the Team Leader said as this is a high support unit she couldn’t work there and she would have to contact another Manager about it as the Deputy Manager was on leave.
The Team Leader asked the Complainant had she taken her break yet and she said no she hadn’t as she was busy that day. The Team Leader told her to take her break next.
The Team Leader called the Complainant upstairs shortly after that and said she had spoken to the Regional Manager. She told the Complainant that the Regional Manager said a risk assessment couldn’t be done as it was a high support unit. The Complainant asked what will happen now and she was told not to come in for her next shift as she would have to get it covered. That was the Saturday when her next shift was for. The Team Leader said she would be in touch with another Site Manager as that is where the pregnant women are sent and she would contact her about when she would go down to be inducted.
On 23rd August 2018 the Team Leader told her she would have to finish immediately as it was too dangerous so she didn’t finish her shift. Other staff who were present at that time asked where was she going and she told them she had to leave as she was pregnant. She felt she was like a bold child being put in the corner and was mortified.
On the Friday/Saturday the Team Leader rang her to go down to the other site to do her induction at 9.00am. She was there then.
The Complainant did her induction on the Monday.
The Manager from this new location contacted the Complainant her on Monday afternoon and asked could she do a sleepover. That wasn’t normal in her previous location where her hours were 9-5. She said yes to the sleepover as she needed the hours. The shift was 4.00 pm until 10.00 am. She completed the shift. The Manager did a risk assessment on her the day before as part of her induction. The Manager passed a comment “we seem to get all the pregnant women” and laughed. There were two other transferred pregnant staff members there also.
The Complainant had shadowed other staff on the Monday during the induction and she was told that one of the service users didn’t like pregnant women and had a tendency to lash out at them.
The Complainant confirmed that each client had their own file and she read them and signed them that night after she did the sleepover. The Complainant confirmed she never gave medication to these clients before so she double double checked everything.
The Complainant met the Manager the following morning who asked how did her night go and she said fine. The Complainant asked when would she be working next and the Manager said she would have to contact another Site Manager to split shifts between the both places as she wouldn’t have enough hours for her.
On Thursday 30th August the Complainant contacted the Acting Manager her previous Location Manager as she hadn’t heard from the Manger about her shift. The Complainant also told her Community Welfare Officer that she’d received no hours or payment and she had 3 children. The Community Welfare Officer said she couldn’t do anything for her regarding payment assistance unless she got a letter from the Company to say she couldn’t work there and they’d no hours for her.
The Complainant stated that’s why she contacted the Acting Manager and explained all this to her. The Acting Manager said she couldn’t give her a letter and it would have to come from Head Office. The Complainant asked what should she do so. The Acting Manager said the only way was to resign and reapply for her job after pregnancy.
The Complainant sent an email to the Acting Manager stating she’d resign on 29th August 2018. She wrote exactly what the Acting Manager advised her in the email and cc’d the Team Leader as she’d also advised. This email said:
“Dear Acting Manager due to me being pregnant I would like to terminate my contract for the maternity contract in which I am filling at the moment and would like to reapply for a position in the New Year when the baby is born”.
The Complainant received an email from Head Office saying she’d resigned on 23rd but she said she never resigned that day she was sent home from work that day.
The Complainant felt she was treated very bad and it was due to her pregnancy and she was made to feel she’d done something bad.
The Complainant said the Team leader also said she couldn’t do a risk assessment on her as it was high risk unit but they’ve subsequently one included in GDPR request information she received but wasn’t signed by her. But they did one in the other location.
The Complainant made a claim then to the WRC.
After this the HR person contacted the Complainant from his mobile and she explained her upset and he said she wasn’t getting 27hour contract then even though she was told she was getting it.
Cross Examination by Respondent of Complainant
The Complainant stated the reason she got upset was not to do with personal circumstances it was due to The Acting Manager’s behaviour on the phone.
Reference reduction in hours to 27 hours the Respondent said it was for a temporary period. The Complainant said this wasn’t the case.
The Complainant said that she was being transferred to another location which had clients with similar issues. She acknowledged it was high support unit where she was initially but less support required in the new location.
The Complainant only did the Induction day which she didn’t get paid for and did one overnight shift and she said she wasn’t rostered for any more hours.
The Respondent stated she’d be rostered.
The Complainant stated she could not access Citrix system which was her work email when she wasn’t at work.
The Respondent said she was due to be in on the 30th. The Complainant said she wasn’t rostered anymore and she was worried about getting no payment.
The Respondent said there were roles coming up she could apply for e.g. Team Leader role. The Complainant said to the Acting Manager she didn’t have the right qualifications or experience for that role.
The Complainant sent messages to the Manager of the new location but got no hours. She contacted the Acting Manager as she was very worried. There was a short window as she was worried about her hours. She wasn’t told of any hours except the one sleep over shift.
The Complainant confirmed she was very happy there and wanted to stay there and didn’t want to leave there.
Another employee was able to stay on for a length of time in the same location she was initially in while she was pregnant, however, the Complainant had to leave immediately as soon as they heard she was pregnant. She was treated differently to this employee.
Summary of Respondent’s Case:
The Respondent stated that the Complainant does not have the statutory requirement of 12 months continuous service with the Respondent, as stated in Section 2(1)(a) of the Unfair Dismissals Acts 1977 to 2015. On that basis the Adjudicator has no jurisdiction to hear this claim.
In her claim form to the Workplace Relations Commission, the Complainant has cited that she does not have 12 months service but the dismissal was due to pregnancy or connected matters yet has failed to provide any evidence to support her claim.
The Respondent say the Complainant voluntary resigned her employment with the Respondent and at no time was dismissed by the Respondent.
The Complainant commenced employment on 4 December 2017 on a fixed term contract in the
capacity of a Relief Care Worker based in the Care Services.
On 26 March 2018 the Complainant received a subsequent specified purpose contract to reflect her
new role as that of a Care Worker based in a Care Centre. This contract was to provide maternity
leave cover in the unit.
The Complainant disclosed she was five months pregnant the day she was offered the new contract
to which the Respondent reacted as they do to all employees who disclose this news and took
appropriate measures to ensure the Complainant was protected against any potential risk. The role
in which the Complainant had been carrying out was a high support level by facilitating ‘a service to
adults with varying. To employ an employee who is five months pregnant would have breached of
health and safety procedures and would put both the Complainant’s and service users at serious
On the same day, 26 August 2018, Team Leader, completed a pregnant employees risk assessment
form which is Respondent policy. The findings were that owing to the high-risk assessment of the
role that it was recommended that the Complainant would report to another location on the 27
August to carry out her role as the other location was a unit was a lower dependency unit. This was
Agreed at the meeting between the Team Leader and the Complainant that she would work there
for the remainder of the specified purpose contract.
On arrival to the Centre, Residential Services Manager (1) met with the Complainant and conducted
a pregnancy risk assessment which was signed by the Complainant.
The Complainant carried out two full shifts at her new place of work on the 27 and 28 August 2018
until she resigned her position with the Respondent on the 29 August 2018. The Complainant was
scheduled to attend her place of work on the 30 August 2018 which cover had to be organised for to
ensure the service users were not left without a Care Worker. The email which was sent to
Residential Services Manager (2) stated “due to me being pregnant I would like to terminate my
contract for the maternity contract in which I am filling at the moment and would like to reapply for
a position in the New Year when the baby is born”.
On the 17 September 2018, the Respondent received correspondence from the Complainant’s legal
representative requesting an investigation into the manner of the Complainant’s departure from the
The matter was investigated by the HR Business Partner. The HR Business Partner wrote to the
Complainant on the24 September 2018 outlining his findings. In respect of the claim that the
Complainant has been offered a new contract of employment for 27 hours he found that a new
contract had not been offered and that a request from the Complainant for a reduction in hours to
27 had been approved but not implemented. Following a meeting with the Residential Service
Manager, the Complainant had agreed to commence work at both locations with immediate
effect. He found that the Complainant had resigned from her position on the 29 August 2018. He
informed the Complainant that there would be roles advertised and that her pregnancy would not
be considered in the recruitment process and encouraged her to apply for new roles.
The Complainant alleges that she was unfairly dismissed by the Respondent. The Respondent
disputes this claim and the fact of dismissal is in dispute. In particular, the Respondent contends
that the cessation of the Complainant’s employment does not fall within the definition of a
“dismissal” by the employer as set out in Section 1 of the Unfair Dismissals Act 1977 to 2015. No
dismissal took place but rather the Complainant voluntarily terminated her position on the 29
August 2019. As the Complainant contends that she was unfairly dismissed due to pregnancy and
other related matters, it is necessary for her to prove that she was dismissed due to this which is
A full Pregnant Employee Risk Assessment was carried out by the Respondent in line with
Respondent policy and the outcome of the assessment was that the Agency was not deemed to be
suitable for the Complainant at this time but that work of lesser support and responsibility was
available in the other location. This was in line with the Respondent’s procedures and the unit at
Agency is a high dependency unit and therefore due to the type of work involved is deemed to be
Too high a risk to those who are pregnant. Indeed, the Complainant was on a specific purpose
contract to cover maternity leave, and that employee had actually not commenced her own
maternity leave but had moved to another unit which would have been a lower risk to her.
The Complainant was transferred to a new place of work at a lower level of risk and a further risk
assessment was carried out as a Health and Safety measure to protect the Complainant for any
The Respondent strongly refutes any allegations that pregnant employees are transferred to any alternative place of work for any reason other than providing a safe place of work for said employee, and to minimise risk to them and the organisation’s service users.
Residential Services Manager (1) stated she called the Complainant regarding the fact she had been explaining to the family the change of role within the service. She stated she would usually talk assertively and she did same with the Complainant. Residential Services Manager (1) stated the Complainant said “I’ve a lot going on and my mom is sick and she used swear words”. Residential Services Manager (1) was shocked that the Complainant left that day. Residential Services Manager (1) was concerned as it was very out of character for her.
With reference to the 27 hour contract Residential Services Manager (1) stated the Complainant had been previously doing a 39 hour maternity leave contract. The Complainant has asked for a 27 hour contract to cover her for a few weeks and to use holidays to make up the 39 hours to allow her to get childcare organised on a temporary basis.
Residential Services Manager (1) stated with reference to the Team meetings she stated she did not say the Complainant would get a 27 hour contract and role they mentioned.
Residential Services Manager (1) confirmed with reference to the 2 services that one is high dependency and one is less.
Residential Services Manager (1) stated with reference to XXXX the girl who was pregnant had to leave the same day she announced her pregnancy. However, the Complainant said she did her induction. Residential Services Manager (1) said she didn’t do her induction.
Residential Services Manager (1) stated with reference to the Risk assessment that this was done by the Team Leader the week she was on holidays.
Residential Services Manager (1) relayed the conversation the Complainant made to herself. The Complainant said she had gone to Social Welfare and it wasn’t worth her while working due to the cost of childcare. Residential Services Manager (1) said she was sorry to hear that as she was disappointed as the Complainant was a stand out worker. Residential Services Manager (1) said the Complainant if she ever wanted to come back please do.
Residential Services Manager (1) stated she could not remember the Complainant stating she wasn’t getting the hours and she had to leave as a result.
Residential Services Manager (1) stated that Team Leader said to her if there were jobs coming in to let her know. That was late November when she let her know about those roles. The Complainant said she wasn’t able to apply due to her pregnancy. She was told she could apply and she applied while pregnant.
Residential Services Manager (1) confirmed that the Complainant could access the Citrix system once she was an employee. Usually an employee would get a message/email or call about their hours when they were out.
Residential Services Manager (1) confirmed that the Complainant only raised the Grievance after she left and that she passed the text messages to the HR Manager after that.
Residential Services Manager (1) confirmed she did not follow up with the Complainant reference to her resignation email as there was no need to.
The Company’s second witness, Residential Services Manager (2) met the Complainant on the 27 August when she was doing her induction and carried out the risk assessment with her at that time.
She stated the Complainant requested 27 hours work. Her roster for the first week involved her induction and sleep over shift. The company were due to confirm her shifts for the following week in person and then roster would be done for the month. Residential Services Manager (2) told the Complainant she could check her work email from her own phone also.
Residential Services Manager (2) stated she was unsure who was due to contact her about her hours. She doesn’t remember if she contacted her about hours.
Residential Services Manager (2) confirmed that the support level of units are different and risk is different also.
Residential Services Manager (2) stated she did not remember saying “there’s a lot of pregnant women coming” and stated that’s not unusual. Residential Services Manager (2) stated she was not surprised when she resigned. The last communication she had with the Complainant was to confirm the sleepover.
Findings and Conclusions:
The Relevant Law Ref: Constructive Dismissal
For a claim of constructive dismissal to be properly brought under Section 8 of the Unfair Dismissals Acts 1977-2015, the Complainant must satisfy the definition in Section 1(b) which provides:
“the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer,…”
As endorsed by the Labour Court in Paris Bakery & Pastry Limited -v- Mrzljak DWT1468, the classic formulation of the legal test in respect of constructive dismissal was set out by the UK Court of Appeal in Western Excavating (ECC) Ltd -v- Sharp  1 All E.R. 713. It comprises of two limbs, referred to as the ‘contract’ and the ‘reasonableness’ tests. It summarised the ‘contract test’ as follows:
“If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any other performance.”
The reasonableness test assesses the conduct of the employer and whether it
“…conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so the employee is justified in leaving.”
According to the Irish Supreme Court in Berber -v- Dunnes Stores  E.L.R. 61:
“The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.”
Unlike the position where dismissal is not in issue, this definition firmly places the onus/burden of proof on the employee to show that the resignation was justified in all the circumstances.
In the case of Allen v Independent Newspapers, IR  E.L.R. 84 the claimant, resigned her position. She alleged that she had been constructively dismissed in that the conduct of her employer and the treatment of her and attitude towards her left no choice but to terminate her employment. The Employment Appeals Tribunal, however, was satisfied that at various stages throughout her employment and more particularly in September 2000, the claimant brought her complaints to senior management level within the Respondent newspaper. Overall, the Tribunal considered that it was reasonable for the claimant to take into consideration the manner in which her various complaints were dealt with during 1999 and 2000 in arriving at her conclusion that she had essentially lost faith in what was being offered by way of investigation by the Respondent in September 2000. She was entitled to do so because the EAT accepted that she had cause for complaint after June 2000. The tribunal therefore accepted the claimant’s assertion that she could have no confidence in the Respondent to address her grievances either properly or effectively and that such was a reasonable conclusion in all the circumstances. Furthermore, the claimant did not act unreasonably in taking into consideration the likely effect on her health and wellbeing were she to remain in the work environment. She had communicated her concerns about her health to her employer. The tribunal, however, considered that this was a constructive dismissal and stated that
“the Respondent company acted unreasonably in its dealings with the claimant and she became frustrated, leaving her with no option but to resign”.
In summary therefore, a failure to use internal Procedures prior to a Resignation must be considered carefully by me in consideration of a constructive Dismissal.
Section 6 (2A) of the Unfair Dismissals Act is as follows:
(2A) 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 been or would be treated.
Pregnancy has been held to be a ‘special, protected period’ in order to limit the adverse effects of discriminatory treatment on women workers and their unborn children. It follows therefore that a particular onus falls on an employer to respect the pregnancy.
Article 10 of the Pregnancy Directive Council Directive 92/85/EEC Pregnancy Directive  OJ L348/1 requires an employer to set out “duly substantiated grounds in writing” where a pregnant worker is dismissed. This is the level at which the bar is set. It is not sufficient for an employer to simply aver that a dismissal during pregnancy was for other unrelated reasons. Some persuasive evidence of an unrelated justification is required.
In the case of Assico Assembly Limited v Corcoran (EED 033/2003) in which Labour Court held:-
“Where the employee is dismissed while pregnant or on maternity leave, both legislation and case law states that 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.”
The Complainant may not have 12 months service as her start date was in dispute but she is basing the claim under Section 6 (2) (f) of the Unfair Dismissals Acts:
Without prejudice to the generality of subsection 6 (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal if it results wholly or mainly from one or more of the following:
the employee’s pregnancy, attendance at ante-natal classes, giving birth or breastfeeding or any matters connected therewith
The Complainant is claiming that it was due to her pregnancy that the Respondent’s attitude changed and discriminated against her by moving her to an alternative location. It is not in dispute that the respondent was aware that the Complainant was pregnant.
The Complainant has not worked since as it has been difficult finding a similar role locally. She had asked for a reference and she hasn’t received yet but the company representative confirmed she will forward same immediately.
Once the company realised she was pregnant they were obliged to provide her with alternative work if necessary but her income should not have been effected and it was which was compounded by lack of communication.
I find based on her evidence that the only reason she resigned was due to her pregnancy. As she was pregnant after she was transferred her income was impacted and I prefer her evidence which confirmed that she was advised to resign to get the Social Welfare and reapply for a job again which surmounts to unfair dismissal based on pregnancy ground because if it was not for her pregnancy the evidence suggests as she was considered a great employee she would still be employed. I find this meets the burden required for constructive dismissal based on her pregnancy on this basis.
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
The claim is well founded based on the evidence provided. Having regard to all circumstances of this case and the legislation I find she was unfairly dismissed due to her pregnancy. She has not gained employment and still awaits a reference from her employer which she has sought to no avail. She earned €460 per week. She is out of work since August 2018 when she resigned due to constructive dismissal based on her pregnancy. She said she could not return to this employer due to their behaviour so reinstatement and re engagement was not a valid redress on that basis. I therefore award the employee € 23,920 compensation which equates to 12 months salary as I consider now she has a reference she should be able to gain similar employment going forward.
Workplace Relations Commission Adjudication Officer: Caroline McEnery