Complainant

Respondent

Parties

Claudia O'Connor

Bretland Construction Limited

Representatives

Citizens Information Service

Penninsula Peter Dunlea

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00060352-001

30/11/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00060352-002

30/11/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00060352-003

30/11/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00060352-004

30/11/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00061032-001

15/01/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00061032-002

15/01/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00061032-003

15/01/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 23 of the Industrial Relations (Amendment) Act, 2015

CA-00061032-004

15/01/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00061032-005

15/01/2024

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

CA-00061032-006

15/01/2024

The complaint submits that the respondent contravened her entitlements under the Organisation of Working Time Act, 1997, the Terms of Employment (Information) Act, 1994, and the Employment Equality Act, 1998.

 The complainant commenced employment with the respondent construction company on 2/5/2023 as a junior health and safety officer. She was dismissed on the 14/11 2023.

Her gross weekly salary was €673 and worked 45 hours a week.

She submitted her complaints to the WRC on 30/11/2023 and on the 15/1/2024.

The complainant withdrew complaints numbered CA-00060352-001, CA-00060352-002, CA-00060352-004, CA- 00061032-001, CA-00061032-002, CA-00061032-004. The complainant gave no evidence on any of these complaints.

CA-00060352-003. Complaint under section 27 of the Organisation of Working Time Act, 1997.

The complainant states that she was not compensated for the loss of 6 days from her annual leave entitlement of 10 days upon leaving the employment of the respondent on 17/11/2023.

Evidence of the complainant given under affirmation.

The complainant states that she was only paid for 4 days annual leave as follows:

7/7/23,

10/7/23,

11/7/23,

18/8/2023.

She states that she submitted medical certificates to the respondent in respect of annual leave days scheduled for 12/6,13/6, 4 /8, 12 /9, 2 and 6 /10 2023 and should have been reimbursed with an additional six annual leave days.

In reply to a question from the adjudicator, she states that she submitted medical certificates for 12/6,13/6 June 4 /8, 12 /9, 2 and 6 /10 2023.

The adjudicator requested that she send copies of medical certs which she had sent to the respondent.

She states that her leave for 4 of the above leave days was approved well in advance.

On two of the 6 days on which she was out sick, days on which she had not sought leave ( the 12/9 and 2/10/2023), the respondent classified these days as sick leave after the fact. She had not applied for leave on these two days; it happened that she fell ill. She never gave permission for these 2 days on which she was sick to be changed to annual leave.

Cross examination of witness.

The witness confirmed that she never raised any objection to the classification of 12/9 and 21/10/2023 as annual leave days.

Complaint under section 7 of the Terms of Employment (Information) Act, 1994

CA-00061032-003

The complainant states that she did not receive a written statement of her terms of employment contrary to section 3 of the Act of 1994.

CA -00061032-005 Complaint under section 7 of the Terms of Employment (Information) Act, 1994.

The complainant states that she did not receive a statement of her core terms of Employmentcontrary to section 3 of the Act of 1994.

CA-00061032-006 Complaint under section 77 of the Employment Equality Act, 1998

This is a complaint of discriminatory dismissal due to pregnancy.

The complainant states that the very fact that she was dismissed while pregnant raises a prima facie case of discrimination and the burden must shift to the respondent to disprove this.

Evidence given under affirmation.

There were no issues during the period May- August 2023.

The complainant completed safety audits on sites, gave toolbox talks, did health and safety training on the construction sites for crews, completed RAMS (Risk Assessment Method Statements), undertook assessments of equipment, attended meetings – all core elements of her role. During her visits to sites in the first month, her then line manager accompanied her.

The complainant advised the respondent Head of Safety, Health and Environmental Quality, DB, on 11/8/2023, in his first week in the job, that she was pregnant. She was afraid that he was going to let her go because she was pregnant After she told him of her pregnancy, and from 28/8/2023 onwards, he did speak to her about grammatical mistakes in her emails. He would not let her send emails without first viewing them.

She believed that she had been progressing well but after she told DB of her pregnancy, his attitude changed towards her; he made her feel unwanted in the company.

Others in the company stated that she was progressing well.

She continued to do the same job after she notified DB of her pregnancy.

She had ten absences due to pregnancy related illnesses. When she returned to work after illness there was no change in her work. When the complainant returned to work after these illnesses, DB was rude to her and ignored her. He never asked her how she was.

On 27/9/23, the complainant completed an Employee Performance Appraisal Form at DB’s request.

Concerning the Employer’s Performance Appraisal report, the complainant acknowledged that there was some truth in the respondent’s observations about her performance, but the respondent was overly critical of her work. It was the lack of training which led to any deficiencies which may have arisen in her performance.

 Cross examination of the complainant.

The complainant acknowledged that she should have been more familiar with the statutory framework governing health and safety; she was only aware of one statute. She should have had more training. The complainant acknowledged that familiarity with health and safety legislation is a key element of her role.   The complainant does not agree that her health and safety certificate was an inadequate preparation for performance of the role or for knowledge of legislation. She stated that she was going to different online sites to improve her knowledge in health and safety, and she also consulted with her previous line manager from time to time. In reply to a question, she stated that she wasn’t studying the legislation.

 She had no training with DB. Occasionally when she was on sites, she phoned DB to seek assistance. DB provided her with her with information / guidance on how to complete forms..

Originally there were two staff on the health and safety team, then DB joined them.

They could have accompanied her to sites. Doing site visits was part of her role but she did not have the training to do undertake full site visits. She confirmed that she did not raise specific training needs with him.

Report of the probationary review meeting of 13/9/23 and submitted in evidence.

On 13/9/23, she attended a 20-30 min probationary review meeting with DB.

The complainant told the respondent that she hoped to be retained.

 Until that date, no issue, other than the emails, had been raised with her.

 DB told her she must address people more formally and that furthermore she should submit all emails to him prior to issue.

To the question as to whether time management was an issue raised with the witness at the September 2023 review, she stated no first, then stated maybe it had been raised once or twice and maybe she might have had an occasional issue with time management.

She stated that she cannot remember if she objected to the record of the review / appraisal of 13/9/2023- it’s a long time ago. She does not recall the details of the meeting. The complainant states that this is her first sight of the review. Performance issues were raised with her, but she had improved.  She disagrees with the assessment of her performance.

She confirmed that she had some knowledge, but it was incomplete.

She accepted that the respondent notified her at the meeting that he expected her to expand her knowledge. She did not accept that her knowledge was insufficient for the role.

The complainant denied having stated as claimed by the respondent in the record of the meeting that her knowledge about health and safety was insufficient to perform site visits.

She accepted that DB stated that she needed to improve.

The witness denies as stated in the September review report that she struggled with key aspects of her role. She was developing her knowledge. She wasn’t fully qualified for the job.

The complainant finally agreed that the record of the meeting of 13/9/23 is an accurate summary of what transpired.

The complainant acknowledged that there was some truth in the respondent’s requirements for improvements, in the quality of her work, the need to be more aware of industry standards, to be more proactive, but that he was overly critical. The complainant states that she was under pressure. She had sufficient knowledge, but she felt pressurised when DB asked her to name the statutes governing Health and Safety.

She denied that she stated at the meeting of the 13/9/2023 that she would like to be more efficient at problem solving the issues facing her on visits to sites.

She remembers DB referring to her losing her temper.

Other than for emails, DB did not work closely with her on her performance on sites. DB told her which sites to go to, but never saw her on site. He did not review her other work.

In reply to a question, she stated that had she had adequate training she would have had sufficient skills and strengths to do the job.

A six-week training and development plan suggested by DB at that meeting was not implemented

She stated that she had a level 5 FETAC qualification, not a degree. The respondent knew her qualifications. She should not have been hired without a commitment to train her. She was only 5 months in the role.

The complainant doesn’t accept that her knowledge was insufficient for the role. 

The meeting of 14/11/2023.

The complainant’s probation ended on 2/11/23 but the review was postponed until 14/11/2023 as she was out on certified sick leave.

The respondent advised her that she was to be dismissed. She stated that she said at the meeting that she did not think she was going to be retained because people had stopped greeting her.

She did not receive a letter from the respondent informing her of her dismissal.

 The witness disputes that she stated that despite high level of guidance and support she had not progressed in her role as much as she would have liked. She had improved.

She hasn’t seen copies of these meetings even though they were provided in her data access request. 

Ultimately the complainant accepted that DB had told her that there was insufficient improvement.  and that her work was not at the standard required.

She does not accept that she was dismissed because of a skills deficit; pregnancy was the reason. To the question as to how and why she formed that view, she replied it was because of how they treated her when she was sick. She stated that she believed that it would be too much of a hassle for him to pay her for the duration of her maternity leave.

She confirmed that the respondent made no reference to pregnancy at the meeting of the 14/11/23. She confirmed that no issue was raised with her pregnancy or sick leave.

DB belittled her; he criticised her emails and her way of speaking.

She confirmed that a base line level of knowledge was necessary for the job. A training plan was promised but not delivered to her.

Mitigation.

To date, the complainant has not sought alternative employment.

Legal submissions.

The complainant’s representative cites O’Brien v Persian Properties t/a O’Callaghan Hotels, DEC-E2012-010 which held that only the most exceptional of circumstances not connected with pregnancy would allow a woman to be dismissed while pregnant. The complainant also relies on Assico Assembly ltd v Corcoran, EED 033/2003, where the Labour Court specified that a dismissal during pregnancy requires the employer to set out the reasons for the dismissal in writing to the employee. So also in Emma Rooney v Nomos productions, ADJ -00039520, the adjudicator, while finding that the complainant’s dismissal was not attributable to her pregnancy, nonetheless awarded €10,000 to the complainant for the failure of the respondent to inform the complainant of the grounds for her dismissal in writing.

The complainant relied further on case number 177/88, Elisabeth Johanna Pacifica Dekker v Stichting Vormingscentrum voor Jong Volwassenen (VJV-Centrum) Plus), who was refused employment on the grounds of pregnancy, an act in contravention of Directive 2006/54/EC (the Recast Directive).

Redress.

The complainant asks that compensation for the breach of the Act should be effective, proportionate and dissuasive.

CA-00060352-003. Complaint under section 27 of the Organisation of Working Time Act, 1997.

The respondent accepted that the complainant was paid for only 10 days of annual leave and was due 11.5 days.

On the days on which she states she was ill, the complainant did not submit certificates. Had she done so, the respondent would have reimbursed her with those days.

The respondent re classified the absence as compassionate leave and paid her for those days.

Evidence of the Head of Safety, Health, Environment and Quality Manager, (DB), given under affirmation

Regarding the complainant’s absences when she was unwell, she did not send medical certificates. She sent texts.

The dates listed below were recorded as annual leave for the complainant on the

respondent’s system:

a) 22nd May

b) 2nd June, (half day),

c) 13th June

d) 7th July

e) 10th and 11th July

f) 4th August (half day)

g) 18th August

h) 12th September (approved on 4/10)

i) 2nd October (approved as leave on 11 Oct)

j) 6th October

Some of the dates of the complainant’s annual leave are listed on the payslips submitted in evidence. The dates on which the complainant took leave are recorded in the complainant’s working time records and submitted in evidence.

The witness stated that on 2 of the days on which she did not turn up for work due to illness and did not produce medical certificates, the witness told payroll to put in annual leave for what could be called compassionate leave and in this way ensured her salary would be paid. This was an ad hoc decision, taken because of the circumstances. The complainant had no contractual entitlement to paid sick leave. She was paid for these two days -days on which she had not booked leave.

No sick leave was recorded.

Had she presented medical certificates in respect of any of the days on which she was ill- be they on dates already pre- booked as annual leave or not, the respondent would have refunded her for the days when she was absent due to illness and provided her with leave in accordance with the requirements of the statutory provisions.

The complaint never raised any objection to this at the time.

CA-00061032-003. Complaint under section 7 of the Terms of Employment (Information) Act, 1994

The respondent concedes this complaint, The respondent states that a fellow employee showed her the terms, but the respondent accepts that a contract was not signed.

The respondent states that whatever redress may be awarded should be proportionate.

CA-00061032-005. Complaint under section 7 of the Terms of Employment (Information) Act, 1994

The respondent concedes that they did not supply the complaint with her core terms as required by section 3 of the Act of 1994.

The respondent states that whatever redress may be awarded should be proportionate.

CA-00061032-006 Complaint under section 77 of the Employment Equality Act, 1998.

The respondent denies that they discriminated against the complainant on any of the grounds listed in the Act.

Evidence of the Head of Safety, Health, Environment and Quality Manager given under affirmation.

The witness is the head of safety and health in the respondent construction company.

He is employed in construction safety since 2003. He is the complainant’s line manager. He received a health and safety award in 2022.

The witness knew the complainant’s family and was a friend of her father, so he had very much hoped that the complainant would succeed in the job.

He was reviewing the work of both the health and safety officer charged with mentoring the complainant, and the complainant.

His job was to bring in more robust systems of safety.

The complainant sat in the same office with him.

She told him of her pregnancy on 11/8/2023. She told him that she was nervous of telling people.

Within a week of working with the complainant, he noticed that she knew little of construction terminology.

He knew from her CV that she had worked in high level safety site in Denmark, in a very safety driven company.

The questions which she put to him during the course of her employment demonstrated a lack of knowledge. She displayed a lack of knowledge about equipment safety, instruction safety.

 The witness had asked her to name – not explain- 5 statutes governing health and safety in Ireland. She was unable to do so.

Contrary to what the complainant has alleged, he did attend sites with her, he attended the Pfizer site with her. This was the only site which she went to unaccompanied on a different occasion. He could not have assigned her to a large-scale construction site. She was safety trained but lacking in knowledge

He worked with her on a residential site in Offaly about 10 times. He would frequently telephone her while she was on site to offer assistance.

In Ireland it is possible to act as a Health and Safety Officer after 2 weeks training. The complainant had a certificate. He expected her to perform at a senior health and safety officer’s level, not a junior health and safety officer’s level based on her experience and qualifications.

The witness held plenty of conversations with the complainant about her work prior to the September review meeting. He would frequently advise her to google an item which she did not understand. On one day, he showed her, ten times in a row, how to do a RAMS (Risk Assessment Method Statement), designed to identify hazards on construction sites, she stated that “she couldn’t be doing those Rams”. She wasn’t even prepared to try and complete the assessment statement.

It is not the norm in the industry that there should be a training plan for her level.

 The complainant asked him for help because she was unable to structure an email with a beginning, middle or end. Her standard of written correspondence, atrocious spelling, landing in a client’s inbox was very problematic.

September probationary review meeting.

The witness spoke to the complainant about the required standard of communication, documentation and spelling mistakes. He spoke to her of her lack of knowledge of Irish health and safety legislation and Irish health and safety norms and standards. She displayed little knowledge of the safety equipment required when erecting scaffolding, pouring concrete etc.

He spoke to her of her ill temper- if someone sat in her desk while she was out, she would use offensive language on discovering this upon her return. He told her at the September meeting that he would work with her more closely until the end of her probation. She was unable to handle a developmental plan – timelines, review dates. He was giving her his full attention each day.

She failed to complete other measurements of risk or injury such as AFR (Accident Frequency Report Form), which obliges the respondent to identify injuries sustained by employees resulting in absences from work in excess of 3 days.

At the meeting of 23/9/2023, he confirmed to her that her written work had improved slightly, but he still had to amend every email. He stated that she was receptive to his suggestions and was doing her best.

Respondent states that this report of the probationary review meeting in September 2023 was sent to her as part of an FOI request, despite her claim that her first sight of it was at today’s hearing.

Meeting on 14 November.

Based on her performance to date, the witness decided not to complete her probation.

He could not recommend her for a permanent position. It was not in the company’s interest to recommend her for a permanent position. It would have taken her years to reach the required standard. In her role, it was expected that you could manage a few sites. It was a very hard decision for the witness to have to make because he knew her family.

She was not proficient. She didn’t engage in any learning. She took no initiative to upskill or update her knowledge.

Her dismissal had nothing to do with her pregnancy. It was her performance.

Cross examination of the witness.

The witness confirmed that the company have a training team.

The site manager would do safety audits, and health and safety officers would provide back up to the site managers.

The witness stated in reply to a question that the respondent company has never been investigated by the HSA. In fact, they have won health and safety awards.

To the question as to how he had allowed the complainant to visit sites if her skills were so below par, he stated that employees can improve with experience.

Regarding the audit which she did complete, it was a less stressful site and there were 2 people doing the audit.

The witness accepted that the complainant referred to the absence of training at the September probationary review meeting. The witness stated that despite being trained, the complainant lacked the necessary knowledge or was unable to put it into action when required.

Concerning the respondent’s failure to create a developmental plan for the complainant as mentioned at the September review meeting, the witness stated that the meeting was hard for her, and he did not wish to place more pressure on her.

He did initially consider extending her probationary period, but he knew such an extension would not deliver the results which the company required.

The complainant was replaced in January 2024 by a person with a degree level qualification.

The witness stated that he did not set out objectives for her to meet within specific timelines as he knew that her competencies would not change within a few weeks.

She would be unable to reach these objectives.

He never once ignored her as claimed, he backed her up.

He confirmed that he did not inquire if she was dyslexic. She never told the witness if she was dyslexic.

Legal Submissions.

The respondent accepts that for the purposes of Council Directive 92/5/EEC, the complainant is a pregnant worker.

The respondent refers to the burden resting with the complainant by virtue of section 85A of the Act to set out the facts which raise an inference of discrimination. The respondent refers to the determination of the Labour Court in Cork City Council v McCarthy, EDA21- 2008 which held that the complainant must identify facts of sufficient significance to raise an inference of discrimination.   The respondent states that the complainant has failed to raise an inference of discrimination,

The respondent acknowledges that as per the decision of O’Brien v Persian Properties trading as O'Callaghan Hotels, DEC-E2012-010, the employer in defending the dismissal of a pregnant woman must demonstrate “exceptional circumstances unconnected with the pregnancy.”

The respondent asserts that they have demonstrated that the complainant was dismissed for exceptional circumstances unrelated to her pregnancy in that she was unable to perform her duties to the standard expected of her.

The respondent asks the adjudicator to find against the complainant’s complaint of discrimination.

CA-00060352-003. Complaint under section 27 of the Organisation of Working Time Act, 1997.

The complainant states that the respondent contravened section 23 of the Act of 1997.

The complainant states that she was entitled to 10 days annual leave, but on six of her annual leave days she was ill and could not avail of annual leave. She therefore only received four days leave.   She stated in evidence that she had submitted certificates but did not produce them.

Furthermore, the respondent, without her agreement, classified the 12 September and 2 October 2023 as annual leave days, afterwards, on 4 and 11 October respectively -after she had been out ill on these days.

She only received 4 days annual leave on 7, 10 and 11 July ,2023, and 18 August ,2023.

Relevant law.

Compensation on cesser of employment.

“23(1) (a) Where—

(i) an employee ceases to be employed, and

(ii) the whole or any portion of the annual leave in respect of the relevant period remains to be granted to the employee,

the employee shall, as compensation for the loss of that annual leave, be paid by his or her employer an amount equal to the pay, calculated at the normal weekly rate or, as the case may be, at a rate proportionate to the normal weekly rate, that he or she would have received had he or she been granted that annual leave.”

The complainant was employed from 2/5/23- 17/11/23, a period of 28 weeks totalling 1282 hours. Section 19 of the Act entitles an employee to

“—(1) Subject to the First Schedule (which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to—

(a) 4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment),

(b) one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or

(c) 8 per cent. of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks):

Provided that if more than one of the preceding paragraphs is applicable in the case concerned and the period of annual leave of the employee, determined in accordance with each of those paragraphs, is not identical, the annual leave to which the employee shall be entitled shall be equal to whichever of those periods is the greater”.

I find based on section 19(c) of the Act that the complainant was entitled to 11.5 days (28.5 weeks x by 45=1282 divided by 8%= 11.5 days).

The respondent accepts that she was paid for 10 days leave.

The records show that two of these days, the 12 September and 2 October 2023 were classified as annual leave days after the fact by the respondent.

Right to reclaim six annual leave days lost due to illness.

Other than for the statutory entitlements, the complainant had no contractual right to payment while on sick leave.

In response to the adjudicator’s request for copies of medically certified sick certificates, the complainant, after the hearing, submitted a statement from her General Practitioner, dated 12/6/2024, stating that the complainant had been ill on six of her annual leave days as follows; 12 and 13 June 2023, 4 August 2023, 12 September 2023 and the 2 and 6 October 2023, and had been issued with a certificate for these days. Yet these certificates were not attached to this statement.Four of the 6 days on which the General Practitioner declared her to be ill, retrospectively, were days which were approved as leave days before the complainant became ill.

But a statement, not copies of certificates which the complainant claimed to have submitted to the respondent, and which was denied, does not meet the requirements of section 10 (2) of the Act of 1997 which provides that:

“A day which would be regarded as a day of annual leave shall, if the employee concerned is ill on that day and furnishes to his or her employer a certificate of a registered medical practitioner in respect of his or her illness, not be regarded, for the purposes of this Act, as a day of annual leave.”

I have found the complainant’s evidence to be unreliable in this regard.

I do not uphold this element of this complaint.

There is another strand to this complaint of a breach of section 23 of the Act. The complainant maintains that while she was ill on12 September and on 2 October, and was paid for these 2 days, the respondent had no authority to classify these two absences as annual leave without her agreement.

The complainant had not booked these days as leave in advance, unlike all the other days on which she took annual leave, and which had been booked in advance.  She happened to fall ill on these two days. So, the possibilities were to either lose her salary for these two days or to secure her salary by way of classifying them as annual leave days.

This element of her complaint was not in her submission. She did not object to the arrangement until the hearing. Nor did she apply for a further 2 days leave if she believed that she was entitled to same due to a misclassification of these absences as two days of annual leave

It would be an irony to find against the respondent who, in an attempt to save her salary for these two days for which she produced no certificate and for which she had no entitlement to pay, classified the days as leave.

Section 20 (3) of the Act states:

“Nothing in this section shall prevent an employer and employee from entering into arrangements that are more favourable to the employee with regard to the times of, and the pay in respect of, his or her annual leave”.

The salary arrangements in classifying these two days as annual leave in the absence of an application for a further 2 days was more favourable to the employee.

I do not find this element of the complaint to be well founded.

I find that the complainant was paid for 10 days annual leave and both parties acknowledge this. In circumstances where I find that she is entitled to 11.5 days, the complainant is entitled to payment for a further 1.5 days.

I find this element of her complaint to be well founded.

I find that the complainant is entitled to payment in respect of the additional 1.5 days which amounts to €201.

Complaint under section 7 of the Terms of Employment (Information) Act, 1994

CA-00061032-003.

The respondent has conceded that they are in breach of section 3(1) of the Act.

The only issue arising, therefore, is compensation for this accepted breach.

Section 7(2)(a) of the Act requires me to decide if the complaint is well founded.

I find that this complaint is well founded.

In accordance with section 7, (2)(d), I require the respondent to pay the sum of €673 which I consider to be just and equitable having regard to all of the circumstances.

 CA-00061032-005. Complaint under section 7 of the Terms of Employment (Information) Act, 1994.

The respondent has conceded that they are in breach of section 3(1A) of the Act, as amended.

The only issue arising, therefore, is compensation for this accepted breach.

Section 7(2)(a) of the Act requires me to decide if the complaint is well founded.

I find that this complaint is well founded.

In accordance with section 7, (2)(d), I require the respondent to pay the sum of €673 which I consider to be just and equitable having regard to all of the circumstances.

CA-00061032-006 Complaint under section 77 of the Employment Equality Act, 1998.

Iam obliged to determine if the dismissal of the complainant on 14/11/2023 was because of her pregnancy and therefore of itself an act of discrimination on the grounds of gender in terms of Section 6 (2) (a) of the Employment Equality Acts, 1998 - 2015,

Relevant law.

Section 6(2A) of the 1998 Act, as amended, also provides protection for pregnant workers against less favourable treatment in the workplace as follows:

“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 85A of the Act sets out the burden of proof resting with a complainant. It states:

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

The section provides that the complainant must, as a first step, prove facts from which discrimination may be inferred. If those facts are established, and if they are regarded by the adjudicator as of sufficient significance to raise an inference of discrimination, the onus passes to the respondent to show that the principle of equal treatment was not infringed in relation to the complainant.

 However, in pregnancy related dismissals, the authorities and jurisprudence clearly demonstrate that an employee dismissed during pregnancy can avail of other, strengthened statutory protections which serve to shift the burden to the employer to prove that the dismissal was wholly unconnected to the complainant’s pregnancy. 

Regarding the burden of proof, the Labour Court relied on the “legal order” of the CJEU in Teresa Cross (Shanahan) Croc’s Hair and Beauty v Helen Ahern, EDA 195, a case concerning the dismissal of a pregnant employee. The court held as follows:

“It is 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 on account of their condition from the commencement of their pregnancy to the end of their maternity leave.  The entitlement to that protection is to be regarded as a fundamental right within the legal order of the Union which the Courts and Tribunals of the Union must vindicate within the limits of their jurisdiction.  It seems equally clear that where a pregnant woman is treated adversely because of her condition during this period of special protection the employer bears the burden of proving, on cogent and credible evidence, that such treatment was in no sense whatsoever related to her pregnancy.”

So also, in V Wrights of Howth Seafood Bars Limited v Dorota, EDA 1728 the Labour Court relied on the judgement of the CJEU in C-177/88. Elisabeth Johanna Pacifica Dekker v Stichting Vormingscentrum voor Jong Volwassenen (VJV-Centrum) Plus), concerning the refusal to employ a pregnant women based on the possible adverse consequences of same. The Labour Court held that

“It is clear from Dekker and from all of the jurisprudence in this area that the dismissal of a pregnant woman is sufficient to raise an inference of discrimination on grounds of gender”.

It is accepted that the complainant advised the respondent on 11 August that she was pregnant.

It is accepted that the complainant was dismissed on 14/11/2023 at the end of her probationary period.

Therefore, and in line with the authorities, I accept that the complainant has established facts from which a presumption of unequal treatment has arisen by reason of the complainant’s pregnancy. The burden now shifts to the respondent to demonstrate that the dismissal was wholly unconnected with the complainant’s pregnancy.

Did the respondent discharge the burden of proving that the dismissal had occurred for reasons unconnected with the complainant’s pregnancy?

Protection of Women during Pregnancy.

The CJEU in the matter of   C-177/88. Elisabeth Johanna Pacifica Dekker v Stichting Vormingscentrum voor Jong Volwassenen (VJV-Centrum) Plus), has 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 ground of her sex. This has been followed in multiple decisions.

In decisions emanating from the relevant Irish fora, the prohibition of any pregnancy-related dismissal can be seen in the decision of the Equality Tribunal in O'Brien v Persian Properties t/a O'Callaghan Hotels DEC-E2012-01, where the Equality Officer focussed on the respondent’s obligation to respect that

“The entire period of pregnancy and maternity leave constitutes a special, protected period as outlined in the Court of Justice of the European Union Decisions”

 The Equality Officer relied on the decisions of the Court of Justice in Dekker, in Carole Louise Webb v EMO Air Cargo (UK) Ltd., Case C-32/93 [1994], a dismissal due to pregnancy, and on Case C-394/96, Mary Brown v Rentokil Ltd. Case C-394/96, which dealt with the dismissal of female employees due to pregnancy related illness.

The Equality officer followed the dicta in these cases noting the imprint of these decisions in Irish authorities and holding that pregnancy is “a special protected period”.

The Equality Officer followed with a reliance on the Labour Court determination in Trailer Care Holdings Ltd v Healy, EDA128 which had found that only the

“most exceptional circumstances not connected with the condition of pregnancy allow a woman to be dismissed while pregnant”.

In Wrights of Howth Seafood Bars Limited v Dorota, EDA 1728, the court upheld the complainant’s complaint of discriminatory dismissal based on pregnancy and set out the EU jurisprudence on the matter. The court noted that

“The jurisprudential principle that discrimination on grounds of pregnancy constitutes direct discrimination on grounds of sex is now codified in Directive 2006/54/EC on the Principle of Equal Treatment of Men and Women (the Recast Directive). This Directive provides, at Article 2. 2 (c), 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.Directive 92/85/EEC (the Pregnancy Directive) provides a comprehensive legal framework in which special protection is afforded to the safety health and welfare of pregnant women in employment. Article 10 of the Directive is of particular and far-reaching significance. It provides: -

               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:

            • 1. 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;

          •  2. 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.

          • 3. 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”.

The Court in Murat elaborated further on the obligations which the respondent bears to discharge the burden of proving that the dismissal had occurred for reasons unconnected with the complainant’s pregnancy. The court stated:

 “The onus which the Respondent bears is to prove that there was no discrimination whatsoever in the impugned decision. The standard of proof is the normal civil standard of the balance of probabilities. In Miller v Minister for Pensions [1947] 2 All ER 372 Denning J (as he then was) explained in relation to that standard: -

      •    “If the evidence is such that the tribunal can say: ‘we think it more probable than not’ the

              burden is discharged, but if the probabilities are equal is not”

The Court in in its conclusions in Murat continued as follows:

“Of significance to the court was the fact that in the above case there had been no issues raised with the complainant regarding her performance prior to her notifying the respondent of her pregnancy on 8thMay 2015 and she had not been subjected to any disciplinary procedures.”

Furthermore, the Court noted that no substantiated grounds for the dismissal were given by the respondent in writing, contrary to Article 10 of the Directive

On balance, the Court has come to the view that the complainant’s dismissal was tainted with discrimination, therefore the Respondent has failed to discharge the burden of proof. Accordingly, the complainant is entitled to succeed.

The Court concluded that the complainant’s dismissal was tainted with discrimination. The Court awarded €15,000 for the effects of discrimination.”

Relevant Facts.

A conflict of evidence exists between the respondent’s analysis of the employee’s abilities to fulfil the duties of a health and safety officer in their construction company, and the complainant’s position which is that the dismissal is attributable to her pregnancy and that further training would have enabled her to rescue her position.

The respondent’s evidence was credible. The respondent gave evidence on the complainant’s difficulty with performing the essential elements of the job for which she was employed. The complainant did not contest his central analysis which was that she was unaware of the statutory framework in which health and safety must operate, she was unable function in large scale construction sites, her knowledge of the requisite standards, measurement of risks and hazards on construction sites was below what was legitimately expected.

 She did not contest the respondent’s assertion that she had time management issues, displayed little or no initiative in building upon her knowledge and skills. She had stated in relation to RAMS that “she couldn’t be doing that”. She did not contest his assertion that the creation of an email with a beginning, middle and end frequently eluded her.

The complaint was contradictory in her evidence, at times accepting what the respondent had said to be correct, and at times denying that she had ever been told of the respondent’s concerns even though she had been a co-author of the September 2023 review which identified these concerns.

But I must reconcile these facts with the fact that within 5 weeks of being notified of her pregnancy, the respondent identified her shortcomings, set out the areas in which he expected her to improve, spoke or committed to a developmental plan designed to give her a chance at rescuing her position within the company, only to abandon that route and dismiss her seven weeks later.

While I accept the legitimacy of the respondent’s unmet expectations concerning  the complainant’s performance, what is inescapable and problematic for the respondent is the absence of evidence of the complainant having been  made aware of the improvements required until after she had notified the respondent of her pregnancy, the fact that the employer abandoned the development plan performance improvement plan and, more crucially, that the respondent failed to notify the complainant in writing of the reasons for her dismissal as opposed to notifying her, earlier, of the areas in which she needed to improve . The staff handbook states at Section G states that the “employee will be monitored on a continuous basis in order to maximise your strengths and help you to overcome potential weakness”. That only occurred after she had notified the respondent of her pregnancy.

For these reasons, I have to find that the decision to dismiss was not wholly unconnected with her pregnancy.  As in Murat, and on balance, I have come to the view that the complainant’s dismissal was tainted with discrimination. Therefore, the respondent has failed to discharge the burden of proof to prove that the dismissal was wholly unconnected with the complainant’s pregnancy.

Accordingly, the complainant is entitled to succeed.

I uphold the complainant’s complaint.

I decide that the respondent should pay the complainant the sum of € 10,415 which is equal to five months’ salary and which I consider to be an appropriate sum in all of the circumstances.

CA-00060352-003. Complaint under section 27 of the Organisation of Working Time Act, 1997.

I decide that this complaint is well founded.

 I require the respondent to pay the sum of €201 to the complainant subject to all lawful deductions.

Complaint under section 7 of the Terms of Employment (Information) Act, 1994

CA-00061032-003.

I decide that this complaint is well founded.

I require the respondent to pay the complainant the sum of €673 which I consider to be just and equitable having regard to all of the circumstances in compensation for this contravention.

Complaint under section 7 of the Terms of Employment (Information) Act, 1994

CA-00061032-005.

I decided that this complaint is well founded.

I require the respondent to pay the complainant the sum of €673 which I consider to be just and equitable having regard to all of the circumstances in compensation for this contravention.

CA-00061032-006 Complaint under section 77 of the Employment Equality Act, 1998.

I decide that this complaint of discrimination on the grounds of gender to be well founded and I decide that the respondent should pay the complainant the sum of €10,415 for the effects of discrimination.

Failure to pay full annual leave entitlement on cesser of employment.

Breach of Article 10 of the Pregnancy Directive.