Complainant

Respondent

Anonymised Parties

A Complainant

A Passenger Transport Provider

Representatives

Tim Kennelly Tim Kennelly Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00067415-001

15/11/2024

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

CA-00067450-001

18/11/2024

The complainant lodged two complaints, the first one under the Equal Status Act on the 15th of November 2024.   The Equal Status complaint was withdrawn at the hearing.

The second complaint of discrimination on grounds of gender and family status was lodged under the Employment Equality Acts on 18th of November 2024 therefore the cognizable six-month period for this claim dates from 19th of May 2024.

The claims arise from matters relating to the complainants return to work following her maternity leave.  

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

CA-00067450-001

18/11/2024

The complainant submits that she  is a Driver employed by the respondent since September 2019.

The complainant submits that she  informed the respondent  of her pregnancy in November 2022 and of concerns she had, due to prior miscarriages.  The complainant advised of her  concerns about driving a passenger transport vehicle and being far from the hospital in case of an emergency. 

The complainant submits that she was called to a meeting and was advised of being assigned to desk duties  as per her request but with reduced pay and conditions as per the reduced role.

The complainant submits that she  there was no mention of a reasonable accommodation policy by employer in this meeting.

The complainant submits that she was temporarily reassigned to front desk duties before maternity leave; and her pay was reduced causing financial stress.  She sought to have her pay restored and succeeded in doing so.

The complainant submits that she  was later placed on sick leave due to stress and provided a fit-for-work note in March 2022.  This was not accepted as CMO advised her to remain on sick leave until the birth.

The complainant submits that she received her maternity pay and benefits at her driver’s rate of pay and following a period of parents leave and parental leave sought to return to her role as a Driver in August 2024.

The complainant submits that she  was advised that she had to attend a fitness to work assessment with the CMO whom she notified that she had suffered from vertigo during her pregnancy and during breast feeding.

The complainant submits that CMO deemed her to be  unfit for Passenger transport vehicle driving  due to vertigo and advised her that she would have to see a consultant neurologist before she could return to work.

The complainant submits that she  sought an alternative role in the intervening period but was only offered alternative role  in Oct/Nov, and with lesser pay.

The complainant queried the pay and refused the role as it was for a reduced level of pay.

The complainant submits that the  Vertigo occurred only during pregnancy/breastfeeding; and so, claims that ailment was pregnancy-related

She submits that her pay should not have been reduced due to a pregnancy-related illness.

The respondent submits that the complainant commenced employment with them as a Driver in September 2020 .  In November 2022, she informed her manager of her pregnancy (due in June 2023).

The respondent submits that the complainant later advised them that her pregnancy was classified as high-risk; following which she was referred to the Chief Medical Officer (CMO) who recommended modified duties.

The respondent submits that from December 2022, the complainant was moved to an information desk role under its Reasonable Accommodation Policy.

The respondent submits that the complainant retained her driver pay during the initial  12-week trial; later assumed  terms and conditions of the new role  in accordance with the respondent Reasonable Accommodation policy which provides that employees can retain the terms and conditions of their previous role for the first 3 month while on alternative duties.

The respondent submits that the complainant was on sick leave from March–June 2023 during which she was paid at her driver s rate of pay.

The respondent submits that the complainant was on Maternity leave from June–December 2023 during which she received her full driver salary minus social welfare.

The respondent submits that the complainant took additional unpaid maternity leave: Nov 2023–Apr 2024 and annual leave & lieu days from Apr–May 2024.

The respondent submits that the complainant availed of Parents’ leave in May–July 2024 and Parental leave during July–Aug 2024 which was granted despite late notice.

The respondent submits that the complainant sought to return to work in August 2024 and was referred for assessment by the CMO who deemed the complainant to be  unfit for safety-critical tasks due to vertigo.

The respondent submits that the complainant was then offered a temporary alternative role, which  refused due to the fact that it attracted a lower rate of pay.

The respondent submits that the complainant returned to driving in March 2025 after being declared fit and invited back to the driver role in February 2025.

The complainant has claimed discrimination asserting that the vertigo suffered by her was pregnancy related.   The Respondent submits that the Illness was not pregnancy-related and says that this position is supported by medical evidence.

The respondent submits that the complainant on her return to work was offered same modified role as before her maternity leave.

The respondent submits that the Maternity Protection Act provides an entitlement to return to previous job unless medically unfit and submits that the complainant was medically unfit to return to her driver role.

The respondent submits that it is governed by European Safety Legislation which mandates fitness for safety-critical roles.

The respondent also submits that the complainant never raised an internal grievance in respect of these matters choosing instead to go to the WRC.

The Employment Equality Act 1998 prohibits discrimination as between any two persons in employment on the following nine grounds as contained in Section 6 (2) of the Act as follows:

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

(c)     That one has family status and the other does not (in this Act referred to as “the family status ground”).

Section 6 (2 A) provides.

Without prejudice to the generality of  subsections (1)   and  (2)  , discrimination on the gender ground shall be taken to occur where, on a ground related to her pregnancy or maternity leave, a woman employee is treated, contrary to any statutory requirement, less favourably than another employee is, has been or would be treated

Section 85A (1) of the Act provides: -

85A.—(1) Where in any proceeding’s facts are established by or on behalf of a Complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the Respondent to prove the contrary.

It is clear from Section 85A (1) of the Act above that the burden of proof is on the Complainant. If the case meets the threshold set out above, then the burden of proof shifts and it is on the Respondent to rebut the presumption of discrimination.

This view is consistent with the decision of the Labour Court in Mitchell v. Southern Health Board [2001] ELR 201, where it was held thar:

“The first requirement […] is that the claimant must “establish facts” from which it may be presumed that the principle of equal treatment has not been applied to them.  This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. 

It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the Respondent to prove that there is no infringement of the principle of equal treatment.”

 In A Company v A Worker,  the Labour Court stated:

“Once an employee has shown that she has been dismissed or discriminated against, under the Burden of Proof Directive, the onus switches to the employer to show that such dismissal or discrimination 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.”

It is well established that the existence of the pregnancy itself is sufficient to shift the burden of proof to the employer to prove that a dismissal of a pregnant employee was not on grounds of the pregnancy. This can be seen in Trailer Care Holdings Ltd v Healy,  where the Labour Court stated:

“in every case in which pregnancy related dismissal is in issue, the factual combination of the dismissal and the woman’s pregnancy must, in and of itself, place the onus of proving the absence of discrimination firmly on the respondent”.

The complainant advised the hearing the prior to her maternity leave she had been signed off sick, and she had been experiencing bleeding and vertigo. The complainant stated that she had sought  to return to work during this time period but was advised by the CMO to stay off and so she had to stay out sick until she gave  birth.

The complainant advised the hearing that her maternity leave started  on the 21st of June 2023 and stated that she had received her full drivers pay throughout her maternity leave.

The complainant advised the hearing that she took unpaid maternity leave and thereafter  that parental leave and parents leave.

The complainant advised the hearing that  she was due back to work in August 2024 and stated that she was prior to her return contacted by her manager Mr. M  who advised that a CMO visit had been scheduled prior to her return.

The complainant advised the hearing that she sought to return to work in August 2024 but was deemed unfit to return to the position of Driver due to the  existence of vertigo.

The complainant advised the hearing that she  saw Dr B of the CMO and stated that she advised Dr B  that she had suffered from vertigo  during pregnancy and port partum whilst breast feeding. 

The complainant advised the hearing that Dr B had then told her  that she would need to see a neurological consultant before she could be signed as fit to work as vertigo was a disqualifying condition in respect of safety critical roles and meant that she was deemed not fit to drive a passenger transport vehicle.  

The complainant stated that she was put on sick leave as she was deemed unfit to return to driving a passenger transport vehicle.

The  complainant told the hearing that she was asked by Dr B on the 5th of September whether she had seen a consultant neurologist yet and she confirmed that she had not. 

 The complaint stated that she  then asked the CMO if she could get reassigned to another role in the intervening period as she needed to return to work and needed to start earning money. 

The complainant  advised the hearing that following this request there were a number of text message between herself and Mr. M  and that Mr. M  confirmed that they could look at bringing the complainant back to work and  putting her on the front desk instead of driving.

The complainant advised the  hearing that she then asked if she would still receive her full drivers pay to which Mr. M  had responded that he would check this out and get back to her.  The complainant  advised the hearing that Mr. M  got back to her on this at the end of September and he advised her that she would be on front desk Pay not on her driver’s rate of pay if she were to accept the alternative role.

The complainant advised the hearing that she had responded to Mr. M  stating that  she should be entitled to her full drivers pay as she was returning from maternity leave and she refused the alternative role on the basis of the lower rate of pay.

The complainant advised the hearing that Mr. M  contacted her again in November/December advising that she would be sent for a medical for the front desk role, but she stated at that stage she had received her appointment with the consultant neurologist following which she was deemed fit to return to her Driver’s role.

The complainant advised the hearing that she had tried to Lodge a formal grievance in November 2024, and she sent an email to HR which was ignored.   The respondent at the hearing stated that the email address used by the complainant was an unmonitored email address which was no longer in use.

The complainant advised the hearing that she has since returned to work having been deemed fit to return to her driving position since February 2025.

The complainant in advancing her claim submits that the  vertigo she suffered from was a pregnancy related condition and that she only suffered from the condition during and post pregnancy and she stated that she had never suffered from Vertigo prior to her pregnancy.

The respondent states that the existence of vertigo renders the complainant unsuitable to work as a Driver saying that it is bound by EU Safety  legislation in this regard.

The complainant in advancing her case stated that once she was over the pregnancy and breast feeding she no longer suffered from vertigo stating that in her case it was purely pregnancy related.

The respondent argued that there was no way of proving this and stated that once it was on notice that she suffered from vertigo it could not allow her to drive a large passenger vehicle.

A member of the CMO team Ms. A appeared as witness for the respondent and confirmed that the Safety requirements for driving a specific passenger transport vehicle clearly state that an individual suffering from vertigo cannot drive a such a vehicle until they have been 6 months without an incident of vertigo and until they have been assessed by a consultant neurologist.   The complainant had advised the CMO that her last episode of vertigo had been in May 2024.

Ms. A advised the hearing that the role of Driver as occupied by the complainant  is a safety critical role, and she  further advised that vertigo is a strongly disqualifying condition when it goes to a safety critical role such as driving a passenger transport vehicle.  The CMO advised the hearing that there are two qualifying conditions to be satisfied before a person who has suffered from vertigo can be allowed to return to the role of Driver as safety critical role the same advised the hearing that two qualifying conditions are that an individual needs to be six months symptom Free and requires an neurological consultant’s report or NT report.

Ms. A stated that both  of these conditions have to be satisfied before an individual  can be permitted to drive a passenger transport vehicle after being diagnosed with the vertigo.

The CMO advised the hearing that  the complainant had advised Dr B  that her last episode of vertigo had been in May 2024..  Ms. A stated that the CMO office advised the complainant of this requirement and stated that they had sent out a letter seeking a neurologist appointment for the complainant to try and had tried to bring the appointment forward in order that the complainant could return to work.

In addressing the complainant’s assertion that her diagnosis of Vertigo was purely pregnancy related Dr A  advised the hearing that it was not possible to definitively state whether or not the vertigo suffered by the complainant was due to pregnancy.    

Dr. A stated that pregnancy hormones can cause vestibular migraines which can lead to vertigo, but she stated that vestibular migraines could not be considered a pregnancy related condition 1.5 years after the pregnancy.

Dr A in addressing the complainant’s assertion that she also suffered from vertigo post childbirth and during breastfeeding stated that in general vestibular migraines should reduce during breastfeeding due to the reduction in pregnancy hormones, but she also stated that infection can also cause an increase in these migraines.  The complainant had advised the hearing that she had suffered from mastitis  infections on 11 occasions post-partum and during breast feeding  which Dr A stated could lead to an increase in vestibular migraines which can cause vertigo.

Dr A advised the hearing that she was aware that the complainant did see a consultant neurologist and that the neurology report in respect of same was received by the respondent on the 15th of January 2025.   Dr A stated that the complainant was  sent for a full medical on the 4th of February and was invited to return to  work on the 17th of February 2025 as the respondent had at this point received the neurologist report and the complainant had  also been symptom-free for six months at this point and so can be considered fit to return to passenger transport vehicle driving.

The respondent’s position is that between August 2024 and February 2025 the complainant  was not fit to drive a passenger transport vehicle due to the existence of vertigo.   

The complainant agrees that she suffered from vertigo but argues that it was pregnancy related vertigo which she states only affected her during pregnancy and breastfeeding.

The Respondent accepts that the  complainant suffers from vertigo but disputes whether its pregnancy related vertigo stating that there is no definitive answer as to whether it is purely confined to pregnancy.

I note that neither party can provide definitive evidence that the vertigo suffered by the complainant was pregnancy related or confined to pregnancy and postpartum.

The complainant submits that she was not permitted to return to work after her maternity leave as she was deemed unfit to work due to vertigo which she submits was a pregnancy related condition.

The respondent agrees that the complainant was deemed unfit to return and submit that it had in those circumstances offered that the complainant could return to work to a desk-based role which she refused.

The complainant stated that she had been concerned that accepting the return to work on the basis of a desk-based role  raised concerns for her as it would mean aa reduction in her remuneration as the desk-based role was a lower paying role than that of a Driver.

The complainant submits that this position was not clarified for her until September 2024.

The Respondent in advancing its case relies on assertion that it had invoked its reasonable accommodation policy to accommodate the complainant prior to her maternity leave when she requested lighter duties for medical reasons.  The complainant denies that any request was made by her on medical grounds stating that she had asked to be taken off longer journeys as hers was deemed a high-risk pregnancy and she had experienced  bleeding and so wanted to be near to the hospital in case of an emergency. 

The complainant agrees that the respondent moved her to a desk-based role as a result of this request, but she denies that it was granted in accordance with the reasonable accommodation policy stating that this policy was not mentioned.

The respondent sought to assert that the complainant had thus already availed of this policy during her pregnancy when she sought and was granted  a move to lighter duties at the beginning of her pregnancy for which she received her Drivers rate of pay.

The complainant disputes that she ever sought reasonable accommodation for a disability during her pregnancy stating that she had sought a move to desk duties for reasons related to her pregnancy due to the fact that she did not want to be far from the hospital and due to the fact that she was experiencing bleeds during the pregnancy and it was deemed as a high-risk pregnancy.

The complainant during this time also sought a reduction in her working hours and this was facilitated by the respondent. 

The complainant at the hearing sought to adduce evidence in respect of the discussion which took place at the time she had made this request at the beginning of her pregnancy.

The respondent at the hearing objected to evidence being adduced in this regard stating that it relates to a period outside of the time limit of the complaint.  While I acknowledged that the matters being referred to were out of time for the purpose of seeking an award I allowed the evidence to be given by way of background and for its   value.

I note that the complainant in this case is seeking remedy in respect of the period from August 2024 to February 2025.

The complainant by way of background to her complaint outlined an incident at the beginning of her pregnancy when she had requested a move from passenger transport vehicle driving.

The complainant advised the hearing that she had been called to a meeting with Mr. S and Mr. C The complainant stated that during this meeting she was told that pregnancy is not an illness and that she was also advised that if she was to be given a reduced role then her wages would be reduced accordingly.  The complainant stated that she had been upset at the time as she had very real concerns that this would affect her permanent contract and conditions and that it would also affect her maternity pay as she was told that she would be on the same terms and conditions as desk duty people.

The complainant stated that following the meeting her pay had been reduced and so she had contacted HR and asked them to intervene.  She stated that Ms D from HR  had intervened and had assured the complainant that she would protect her permanent contract, but the complainant was told  that her manager was the only one with the ability to change her pay.   

The complainant stated that her  wages had been reduced  and that she had to fight to get them back she stated that Mr. M  had been instrumental in restoring her pay. 

 Witness for the respondent Mr S  had a different recollection of this meeting and stated that no issues were raised and that he didn’t recall the complainant being upset at the meeting. 

I note that the complainant’s wages were reduced at the time which is consistent with the complainant’s version of the meeting.  I also find it hard to believe that a meeting where the complaint while pregnant was advised that her pay wud be cut could have ended amicably and I find it more likely that the complainant would have been upset .   

Accordingly, I prefer the complainant’s evidence in relation to this matter.    Although I note that this this incident is outside of the time limits of the act I am satisfied that is has precedent value in setting the scene for the claims that followed and is important by way of background to the claims before me. The complainant advised the hearing that following this meeting  she was upset and distressed and as she had already been experiencing bleeds in what was already a high risk pregnancy and so she went to the CMO again who recommended that she reduce her hours to try and reduce her stress levels.  This request was granted by the respondent.

The respondent at the hearing argued that the complainant during her pregnancy had requested desk duties and shorter hours and had been granted same under the respondents Reasonable Accommodation policy under which individuals retain their rate of pay for 12 weeks before moving to the rate of pay commensurate with the alternative role.

I note the complainant’s position that she was told at this meeting that pregnancy was not an illness and that she was also told that her wages would be reduced in  line with the new role and that her wages were in fact reduced for a period after this but were later restored.

This does not tally with the respondent’s assertion that the complainant was given lighter duties in accordance with its reasonable accommodation policy.

The respondent also sought to assert that  the complainant had already sought adjustment under its RA policy during her pregnancy and so had exhausted her 12 weeks’ entitlement to full pay while temporarily on a reduced role.

I am satisfied from the evidence adduced that the respondent in dealing with the complainants request to be moved from passenger transport vehicle driving did not do so under the RA policy as the complainant was initially advised that her pay would be reduced immediately which it was.

The complainant’s position is that she was not permitted to return to work after her maternity leave.  The complainant does not dispute that she was offered an alternative role as she was deemed unfit to drive due to suffering from vertigo, but the complainant turned down this alternative role as it was confirmed that she would not retain her driver’s rate of pay if she accepted the alternative role.

The complainant in arguing that she should have retained her driver’s rate of pay asserts that she was deemed unfit to drive a passenger transport vehicle due to a pregnancy related condition vertigo.  I note from the evidence adduced at the hearing there was no definitive evidence that the vertigo was strictly pregnancy related .

I note the CMO evidence that pregnancy can bring on vertigo but also that breast feeding should ease it due to a reduction in pregnancy hormones but I also not t eh complainants’ position that incurred repeated mastitis infections    I also note the CMOs position that the complainant was deemed unfit to work due to vertigo in August 2024 which was a year and a half after giving birth.

While I note that there is no conclusive evidence to support or dispute the assertion that the condition which prevented the complainant from returning to her role was in fact pregnancy related I do note that the complainant was returning to work after her maternity leave and after the protected period

I also note the 2 conditions attached to the complainant’s condition and which were required before the complainant could be permitted to return to her role as a driver. Ie. 6 months without incident and also a neurologist’s report.

In considering all of these factors I am satisfied the respondent was aware that the complainant condition was in some way connected to her pregnancy that she was returning to work after a protected period and also that there was potentially a short timescale before she would be deemed fit to drive again given that she had already been 3 months without incident and was awaiting the neurologists report.  Meeting both of these conditions would mean she could be deemed as fit to drive a large passenger vehicle.

I am also satisfied that the respondent was aware that the complainant was a person returning to work after a specially protected period and whose role and terms remain protected throughout that period.

I note that the claim submitted  is one of discrimination on grounds of gender and family status.  The complainant in advancing the claim of discrimination on grounds of gender asserts that she was subjected to less favourable or adverse treatment when she sought to return to work after the specially protected period surrounding her pregnancy and the birth of her child.   As pregnancy is a uniquely female condition I am satisfied that the claim being submitted is one of discrimination on grounds of gender.

The respondent at the hearing repeatedly referred to its reasonable accommodation policy which it outlined entitled employees to 12 weeks at their previous rate of pay where lighter duties were being undertaken by an employee returning to work after a period of absence due to sick leave or disability.  The respondent stated that under this policy an employee was entitled to their full pay for 12 weeks after which they would assume to pay and conditions of the new role if they continued in the lighter duties or reduced role after the three-month period.

I note that the complainant in this case was returning to work after a period of protected leave and following a doctor’s assessment was deemed unable to return to her role due to the existence of vertigo which she states she only developed during pregnancy.  Both parties agree that the complainant was deemed unable to carry out the role of Driver due to her diagnosis of vertigo until 2 conditions were met.

The  complainant then requested an alternative role which she was offered but only at a lesser rate of pay.

I note the respondent’s position that other employees were entitled to retain their higher rate of pay for 3 months before having to assume the rate of pay commensurate with the alternative duties.  I also note that the complainant was advised that she would not retain her rate of pay but would be paid at the lower rate commensurate with the alternative role.   I also note the complainant’s position that the reason for her inability to return to her role as a driver was linked to her pregnancy and was a condition she developed during her pregnancy.

Accordingly, having considered the totality of the evidence adduced I am satisfied that this amounts to adverse treatment of the complainant and given the timing of such treatment i.e.  that the adverse treatment  took place during the complainants return from maternity leave I am satisfied that such treatment amounts to discrimination on grounds of gender as pregnancy is a uniquely female condition.

Redress

In deciding on the redress, I am cognisant of the fact that the complainant when offered an alternative role but at a lower rate of pay declined to accept that role.  I note the position of the respondent was that the complainant could not return to driver duties due to vertigo  until she met the two conditions necessary and that the complainant was aware of this and had sought an appointment with a neurologist in order to meet one of these conditions.  

Given the respondent’s assertion that it  had dealt with her previous request for alternative duties under its RA policy I am satisfied that it was at least open to the respondent to offer the complainant the alternative role at her previous rate of pay for a period of 3 months before reducing her to the lower rate of pay as per their reasonable accommodation policy. In considering the redress to award I also note that the complainant sought an alternative role which would enable her to return to work sooner but that she did not accept it as it was on a lower rate of pay.  I note however  that It was open to the complainant at this juncture to return to work while continuing to raise an objection to the lower rate of pay but to accept the role as a stop gap until she managed to satisfy the two conditions necessary to enable her to return to her role as a driver. refused this role opting instead to remain out of work  I also note however that there were delays in the respondent reverting to the complainant in respect of the offer of alternative work and in respect of the conditions attached to same.

I note that the 2 qualifying criteria were reached by the complainant in February 2025 and that she was offered a return to her driver’s role on 17th of February 2025.

I note that the complainant had sought to return to work in August 2024 and thus was out of work for 6 months however I note that she could have returned to work sooner in the alternative role but chose not to due to the lower rate of pay being offered for that role

Having considered the totality of the evidence adduced and taking into account all of the circumstances of this case I consider an award of €16,500 to be appropriate in this case.

I note the complainant has also submitted a claim on grounds of family status however the complainant has not advanced any evidence in respect of a comparator with a different family status and against whom she is alleged to have been treated less favourably on the ground of her family status.  Accordingly, I am satisfied that the complainant had failed to establish any less favourable treatment on the ground of her family status.   Accordingly, I am satisfied that the complainant was not discriminated against on  grounds of family status.

I find that the complainant was discriminated against on grounds of gender and I direct the respondent to pay the complainant the sum of  €16,500 in this regard.

I find that the complainant was not discriminated against on  grounds of family status.

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00067415-001

15/11/2024

This claim was withdrawn at the hearing accordingly I am satisfied that this claim is not well founded.