Complainant

Respondent

Parties

Thayane  Sousa

Asba Meats

Representatives

Self-represented 

Did not attend

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00068439-001

03/01/2025

The Complainant commenced her employment with the Respondent on 22 July 2022 as a General Operative.

On 3 January 2025, the Complainant referred to the Director General of the WRC her claim pursuant to the Employment Equality Acts, 1998 alleging that she was discriminated against by the Respondent.

A hearing for the purpose of investigation of the Complainant’s claim was scheduled for 11 June 2025. Correspondence informing the parties of the arrangements for the hearing issued on 1 May 2025. There was no attendance by, or on behalf of, the Respondent at the hearing. There has been no communication from the Respondent indicating any difficulties with attending the hearing or requesting a postponement. The Complainant attended the hearing.

In her WRC complaint referral form, the Complainant submitted that she was pregnant and her manager did not call her to work at all and told her to rest. The Complainant submitted that she asked the manager why he was not calling her to work, and he told her that it was because of the Respondent’ financial difficulties. However, the Complainant submitted that her colleagues were working as normal. The Complainant submitted that she was not called to work because of her pregnancy. The Complainant submitted that she has her weekly expenses and a daughter that depends only on her.

At the adjudication hearing, the Complainant gave evidence that she has been working for the Respondent since July 2022.  She left the Respondent on 22 May 2024 but returned to work on 9 July 2024.

The Complainant gave evidence that some 2 weeks after her return in July 2024, she informed her supervisor, Mr Fahad Khushi, of her pregnancy. The Complainant stated that following the disclosure of her pregnancy, there was an immediate and noticeable change in the attitude towards her. She was assigned tasks that were outside the scope of her role and were significantly more physically demanding, such as boning. The Complainant could only assume that it was an attempt to force her out of employment with the Respondent.

The Complainant further testified that her working hours were substantially reduced after informing the Respondent of her pregnancy. Although her contract stipulated 40 hours per week at a gross salary of €508, she typically worked 35 hours at the national minimum wage. After she disclosed her pregnancy, her hours were cut back, and on several occasions, she was not scheduled to work at all. She said that even if there was less work, other employees continued to work at least four days per week, she was only allocated hours for two days. The Complainant noted that among approximately 12 staff members, she was the only pregnant employee.

The Complainant provided evidence that she contacted the Respondent multiple times, including via text messages, requesting her hours back, but received no positive response. She submitted copies of messages in which her supervisor repeatedly stated that there was no work available for her and advised her to “take rest.” She also presented messages showing her repeated inquiries regarding delayed salary payments.

The Complainant described the effect the Respondent’s actions had on her and her daughter.

The Complainant made an application to amend the complaint form. When submitting her claim, the Complainant said, she ticked the box stating that she was discriminated against on the ground of disability. However, in the complaint specific details, she stated clearly that her claim related to the treatment she was subjected to after she informed the Respondent of her pregnancy.  The Complainant said that she does not speak English, she had never dealt with discrimination matters or the WRC before. She said that she completed the form on her own and did not know where the pregnancy would fit in the context of her claim.

There was no attendance by, or on behalf of, the Respondent at the adjudication hearing.

Preliminary matter

The Complainant sought to change her pleadings from that she initiated on 3 January 2025 pursuant to the Employment Equality Act 1998. The Complainant, in the WRC complaint referral form, indicated that she was discriminated against on the grounds of her disability. At the hearing, the Complainant sought to amend the form to reflect gender as the ground for the alleged discrimination.

The Complainant explained that while she initially selected “disability” as the ground for discrimination, the narrative of her complaint clearly referred to the treatment she experienced following the disclosure of her pregnancy. She clarified that she does not speak English and had no prior experience with discrimination claims or the WRC. She completed the form without any assistance and was unsure how to categorise pregnancy-related discrimination.

The WRC complaint form is not a statutory form. It is intended to set out the outline of a complaint or complaints, so that, and in line with fair procedures, the Respondent knows the issues it faces.

I am guided by the High Court judgment in the case of County Louth Vocational Educational Committee v The Equality Tribunal and Pearse Brannigan [2009] IEHC 370 where at paragraph 6.2 McGovern J held;-

‘I accept the submission on behalf of the respondent that the Form EE1 was only intended to set out, in broad outline, the nature of the complaint. If it is permissible in court proceedings to amend pleadings, where the justice of the case requires it, then a fortiori, it should be permissible to amend a claim as set out in a form such as the EE1, so long as the general nature of the complaint (in this case, discrimination on the grounds of sexual orientation) remains the same.’ 

I note that McGovern, J. also stated in this judgment at paragraph 6.3 that this can only be done so long as "the respondent in the claim must be given a reasonable opportunity to deal with these complaints, and the fair procedures adopted by the Equality Officer must be fair and reasonable and in compliance with the principles of natural and constitutional justice."

I also note the dicta of MacMenamin J. in the Supreme Court in County Louth VEC v Equality Tribunal [2016] IESC 40:

‘It goes without saying, first, that the duty of the Equality Officer is both statutory, and, ultimately, delimited by constitutional considerations. As part of fair procedures, it is necessary that all parties be aware, in a timely way, of the case which they must meet. Consequently, it would be wrong, were a situation to evolve in this investigation, where one or other of the parties was under a misapprehension of precisely the range of legitimate inquiry. Second, it is hardly necessary to reiterate that it is not possible for any tribunal, upon which a particular jurisdiction has been conferred by statute, to extend or confine the boundaries of that jurisdiction by an erroneous determination of fact (see State (Attorney General) v. Durkan [1964] I.R. 279, approved in Killeen v. DPP [1998] ILRM 1). There may also be circumstances in which a tribunal, although holding jurisdiction to enter upon an investigation or inquiry, may render its decision a nullity by, for example, a denial of fair procedures.’

I further note that in his judgement in Clare County Council v Director of Equality Investigations [2011] IEHC 303 Hedigan J. stated at paragraph 6.5:- 

‘It is clear from the foregoing that because the EEI form is only designed to set out the generality of a complaint, complainants should be allowed to expand on matters not specified in the form. So long as respondents are not taken by surprise, or alternatively given adequate time to answer, there can be no injustice therein.’

I further note the dicta of Charleton J. in Galway-Mayo Institute of Technology v Employment Appeals Tribunal [2007] IEHC 210:

‘It follows from the foregoing that a judicial or quasi-judicial tribunal is not entitled to invoke a statutory remedy which no one has sought and in respect of which no one is on notice. For the purpose of fulfilling the requirements of natural justice, however, I would have thought that if any such tribunal does have jurisdiction to give a remedy under a particular Act, then if this remedy is sought in an originating document, for instance by ticking a box giving a choice of remedies, or if it is orally sought to in the course of the hearing, such a tribunal is entitled to make a choice in favour of it. If that happens, parties have to be taken as being aware that in the event that a decision goes a particular way the tribunal may look to a remedy claimed. In that regard, I would regard a written claim or an oral assertion seeking a particular remedy as being sufficient for the due administration of constitutional justice provided the tribunal has jurisdiction in respect of it. If remedies are complex, and a tribunal has rules as to notice in the form of simple originating documents, then it should abide by its own procedures or consider the grant of an adjournment to a genuinely surprised party.’

In Clare County Council v Director of Equality Tribunal [2011] IEHC 303, Hedigan J noted that “allowances must be made for the fact that lay persons and representatives do not articulate complaints in the same way as professionally qualified advocates.”

However, I also note Mc Kechnie J in Louth VEC and Equality Tribunal v Brannigan [2016] IESC 40 stating that the Tribunal cannot ‘freelance its inquiry‘:

‘35.  It is both a trite and historical principle of law that a creature of statute must live by the statute. Its jurisdiction is found solely within the provisions of the enabling Act. It has no inherent capacity, unlike, say, that of a constitutional court. It is therefore bound by what has been conferred on it. It has no further competence and it cannot create, add to or enlarge the jurisdiction so vested in it. Kileen v Director of Public Prosecutions [1997] 3 I.R. 218. It is bound by what jurisdiction it has and must act accordingly.’

I note that the WRC complaint referral form is not a statutory form. It is intended to set out the outline of a complaint or complaints, so that, and in line with fair procedures, the Respondent knows the issues it faces. In this case, the issues that are subject of the Complainant’s dispute were raised in the complaint form. The complaint form was copied to the Respondent.

I am satisfied that the Complainant did set out in narrative form the substance of the complaint. I am satisfied that no prejudice or injustice accrues to the Respondent, by the amendment of the complaint form.

Substantive matter

The Complainant referred her claim to the Director General of the WRC on 3 January 2025 alleging that the Respondent discriminated against her following the disclosure of her pregnancy.

Discrimination

Section 6(1) of the Act provides that discrimination shall be taken to occur where ‘a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) ...’.

Subsection (2) stipulates:

‘As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

(a)    that one is a woman and the other is a man (in this Act referred to as “the gender ground”),’

(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.’

Section 8 of the Act in relevant parts provides:

‘8. Discrimination by employers etc.

(1) In relation to—

(a) access to employment,

(b) conditions of employment,

(c) training or experience for or in relation to employment,

(d) promotion or re-grading, or

(e) classification of posts,

an employer shall not discriminate against an employee or prospective employee and a provider of agency work shall not discriminate against an agency worker.

(8) Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee in relation to promotion if, on any of the discriminatory grounds—

(a) the employer refuses or deliberately omits to offer or afford the employee access to opportunities for promotion in circumstances in which another eligible and qualified person is offered or afforded such access, or

(b) the employer does not in those circumstances offer or afford the employee access in the same way to those opportunities.’

Burden of proof

Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the Complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to her. If she succeeds in doing so, then, and only then, is it for the Respondent to prove the contrary.

As noted in Chapter 4 of “Employment Equality Law” 2nd ed., 2022 (Bolger, Bruton and Kimber):

“4.154It is now well established that the fact of pregnancy is sufficient in itself to shift the burden of proof to the employer, once the applicant has established less favourable treatment. It is then for the respondent employer to prove that the less favourable treatment was on not on grounds of the pregnancy.”

In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the Complainant. It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the Respondent. 

Time limit

Section 77 provides as follows:

‘(5)

(a) Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.

(b) On application by a complainant the Director General or Circuit Court, as the case may be, may, for reasonable cause, direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and where such a direction is given, this Part shall have effect accordingly.

(c) This subsection does not apply in relation to a claim not to be receiving remuneration in accordance with an equal remuneration term.

(6) Where a delay by a complainant in referring a case under this section is due to any misrepresentation by the respondent, subsection (5)(a) shall be construed as if the references to the date of occurrence of the discrimination or victimisation were references to the date on which the misrepresentation came to the complainant's notice.

(6A) For the purposes of this section—

(a) discrimination or victimisation occurs—

(i) if the act constituting it extends over a period, at the end of the period,

(ii) if it arises by virtue of a term in a contract, throughout the duration of the contract, and

(iii) if it arises by virtue of a provision which operated over a period, throughout the period,

(b) a deliberate omission by a person to do something occurs when a person decides not to do it, and

(c) a respondent is presumed, unless the contrary is shown, to decide not to do something when the respondent either—

(i) does an act inconsistent with doing it, or

(ii) the period expires during which the respondent might reasonably have been expected to do it.’

The time limits which govern the referral of complaints under the legislation are provided for in Section 77 of the Acts (as set out above). The effect of these provisions is that the Complainant can only seek redress in respect of occurrences during the six-month period prior to the date on which the claim was received by the WRC unless the discrimination in issue is part of a continuum of events.

The entire period of pregnancy and maternity leave constitutes a special protected period as outlined in the European Court of Justice decisions in Webb v EMO Air Cargo (UK) Ltd [1994] ECR 1-3567, Brown v Rentokil Ltd [1998] ECR 1-04185 and Dekker v Dekker v. Stichting Vormingscentru voor Jonge Volwassen [1990] ECR 1-3941. It is well established that discrimination based on pregnancy comes within the remit of gender-based discrimination. This is expressly provided for in section 6(2A) of the Employment Equality Act, as quoted above which expressly prohibits direct discrimination on the grounds of pregnancy.

The seminal Irish case for dismissal on the grounds of pregnancy is O'Brien v Persian Properties trading as O'Callaghan Hotels, DEC-E2012-010, where the Equality Officer relied on the decisions of the Court of Justice in Dekker, Webb and Brown in confirming that pregnancy is “a special protected period”.

In Trailer Care Holdings Ltd v Deborah Healy EDA128 the Labour Court summarised the legislative provisions and authorities regarding protection of women during pregnancy as follows:

“It abundantly clear from these authorities, and from the legislative provision of the European Union, that women are to be afforded special protection from adverse treatment, and in particular from dismissal on account of their condition, from the commencement of their pregnancy until the end of their maternity leave. The entitlement to that protection is to be regarded as a fundamental and inviolable right within the legal order of the Union which the Courts and Tribunals of the Union must vindicated within the limits of their jurisdiction.  It seems equally clear that where a pregnant woman is dismissed during this period of special protection the employer bears the burden of proving, on cogent and credible evidence, that the dismissal was in no sense whatsoever related to her pregnancy.”

In Croc’s Hair and Beauty v Helen Ahern ADE/16/58, the Labour Court set out its understanding of the legal protections for pregnant women. It referred to the fact that the then ECJ recognised in the case of Dekker v. Stichting Vormingscentru voor Jonge Volwassen (VJV-Centrum) C177/88 (1990) EUECJ R177/88, that, as pregnancy is a uniquely female condition, any less favourable treatment on grounds of pregnancy constitutes direct discrimination on grounds of gender.

In Astra Leisure and Ultra Fresh Services Limited v Svetlana Grodzicka EDA2322, the Labour Court noted that “this principle has been copper fastened by the recognition of equality on gender grounds in the Charter of Fundamental Rights of the European Union which was, in turn, incorporated into the Lisbon Treaty. The jurisprudential principle is set out in Directive 2006/54, which provides that any less favourable treatment of a woman related to pregnancy or to maternity leave constitutes unlawful discrimination.”

The Court went on to state that:

“The Court in  Croc’s Hair and Beauty v Helen Ahern observed that the special protection afforded to women from the commencement of their pregnancy until the end of their maternity leave is to be regarded as a fundamental right and that where a pregnant woman is treated adversely because of her condition during this period, the employer bears the burden of proving, on cogent and credible evidence, that such treatment was in no sense related to her pregnancy.”

The uncontested evidence of the Complainant was that she informed the Respondent of her pregnancy in July 2024. The Complainant alleged that thereafter she was instructed to perform duties that were outside the scope of her role and which were more physically demanding. She also asserted that her hours of work were reduced.

The Complainant exhibited copies of payslips from 2022, 2023 and beginning of 2024 showing that she was paid for, or in excess of, 40 hours. She also exhibited copies of text messages she received from her supervisor in November and December 2024 stating that there would be no work for her and to “take rest”. The Complainant’s evidence was that this continued until she commenced maternity leave.

Based on the uncontested evidence of the Complainant supported by documentary evidence exhibited at the hearing, I find that the Complainant has established facts, which are of sufficient significance to raise an inference of discrimination. I am satisfied that there is prima facie evidence that the Complainant was discriminated against on the gender ground. As the Complainant has established a prima facie case of discrimination, the burden of proof shifts to the Respondent to rebut it.  In the absence of any engagement on the part of the Respondent, I find that the Respondent has failed to discharge the burden of proof which it bore in that regard. 

Consequently, I find that the Respondent discriminated against the Complainant on the ground of her gender.

I declare this complaint to be well founded. In accordance with section 82 of the Act, I order the Respondent to pay the Complainant €20,000 in compensation which I consider to be appropriate redress in all the circumstances/ The award is not in respect of remuneration including arrears of remuneration.

Discrimination – pregnancy-