ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00056559

Parties:

	Complainant	Respondent
Parties	Lisa McGrath	Net Smart Security Limited

Representatives

Setanta Landers, Setanta Solicitors

Anna Rosa Raso, ESA Consultants

Complaint(s):

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00068806-001	23/01/2025
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00068806-002	23/01/2025
Complaint seeking adjudication by the Workplace Relations Commission under Section 18 of the Parental Leave Act 1998	CA-00068806-003	23/01/2025
Complaint seeking adjudication by the Workplace Relations Commission under Section 18 of the Parental Leave Act 1998	CA-00068806-004	23/01/2025
Complaint seeking adjudication by the Workplace Relations Commission under Section 30 and 31 of the Maternity Protection Act 1994	CA-00068806-005	23/01/2025

Date of Adjudication Hearing: 08/07/2025

Workplace Relations Commission Adjudication Officer: John Harraghy

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Acts, 1998 - 2015, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

The parties were advised at the outset that following the delivery of a judgement of the Supreme Court in Zalewski v Adjudication Officer on 06/04/2021 that hearings before the Workplace Relations Commission are now held in public. That may result in decisions no longer being anonymised. Both parties were advised that an Adjudication Officer may take evidence on oath or affirmation.

The parties were also notified of these changes by the WRC in the letter confirming details of the hearing.

While the parties are named in this document, from here on, I will refer to Ms Lisa McGrath as “the Complainant” and to Net Smart Security Limited as “the Respondent.”

The Complainant was represented by Mr Setanta Landers, Setanta Solicitors and the Respondent was represented by Ms Anna Rosa Raso, ESA Consultants. The Complainant gave evidence on oath. Two representatives from the Respondent, Ms Elaine Barton and Ms Shauna Kavanagh gave evidence on oath.

The parties’ respective positions are summarised hereunder followed by my findings and conclusions and decision. I received and reviewed documentation prior to the hearing. All evidence and supporting documentation presented has been taken into consideration.

Background:

The Complainant commenced employment with the Respondent on 22/08/2022 as an Accounts Administrator. She was paid €24,000 per annum and was also in receipt of a quarterly bonus of €500 subject to various KPI’s. She commenced maternity leave in January 2024 following which she availed of parental leave up to 15/09/2024. She requested a return to part-time work due to the difficulties during her pregnancy and the need to provide care for her baby. The Respondent stated that this could not be facilitated. The Complainant submitted her resignation on 17/09/2024. She submitted her complaints of constructive discriminatory dismissal on 23/01/2025.

The Respondent submits that the complaint is out of time and submits that they acted in good faith at all times and denies that the Complainant was discriminated against.

Summary of Complainant’s Case:

It was submitted on behalf of the Complainant that while a number of complaints were filed there was an element of overlap. This case must be looked at in the context which is relevant and that is that the Complainant could not return to work at the end of her maternity leave on 17/09/2024. As her complaint was filed on 23/01/2025 there is no time issue as the complaints were filed within a six-month period from 17/09/2025. This is a case of constructive equality dismissal and if it was found that the complaint was out of time then an extension is requested in the interests of fairness and justice and particularly when the dismissal is linked to pregnancy and maternity leave.

Evidence - the Complainant:

The Complainant gave evidence on oath. She outlined details of her employment with the Respondent which commenced in August 2022, and she was involved in the processing of direct debits and invoicing. The Complainant stated that she was happy to get this job as she had aspired to work in an office environment. She got on well with her manager. The Complainant gave details of the layout of the building and confirmed that she worked on the second floor. She received training and successfully passed her six months’ probation. She was also approved for the quarterly bonus scheme which she received. After a year she received a salary increase following a meeting with Ms Barton who approved this. The Complainant stated that she worked well with the team and Ms Barton was supportive.

The Complainant gave evidence that she had a doctor’s appointment in June 2023, and she asked Ms Barton if she could finish about an hour early so that she could attend. She was refused permission and she then, reluctantly, had to tell Ms Barton that she was in the early stages of pregnancy and her appointment was in relation to this. The Complainant stated that she told a colleague who was a friend about her pregnancy before this. Other colleagues picked up that she was pregnant as she got upset on occasions and there was a lot going on in her life and this was her first pregnancy. The Complainant confirmed that the first time she told the Respondent about her pregnancy was the date of this doctor’s appointment. The Complainant stated that Ms Barton displayed a shocked reaction when she was informed of the pregnancy and made comments about her still living at home. The Complainant stated that she got “no human reaction” to the news of her pregnancy from Ms Barton.

The Complainant stated that she was not aware of any HR function in the Respondent’s business and Ms Barton was the person to go to. The Complainant confirmed that she was not offered any risk assessment and she still had to use the stairs to go to her office as there was no lift in the building. The Complainant also confirmed that she was aware that there were offices on the lower floor and when she heard a conversation about someone from accounts moving to the ground floor, she offered to move but this was not allowed.

The Complainant stated that before she told Ms Barton about her pregnancy, she had a great relationship. Ms Barton told her that she was great, and she took on additional work when someone left. After she informed her of her pregnancy the Complainant stated that there was a major change. She felt belittled and received sarcastic comments. The Complainant stated that she felt that she did not matter anymore, and she was not greeted on some mornings.

After her pregnancy was notified, she was asked to take on additional duties. This included training in a new employee and dealing with a backlog when a colleague resigned. The Complainant stated that she found this stressful and had a “meltdown”. She stated that Ms Barton apologised to the new employee for the Complainant’s meltdown behaviour.

The Complainant gave evidence in relation to her various appointments. When she attended the appointments in Tallaght Hospital she usually returned to the office after these. When she attended the Coombe Hospital these were of longer duration which consisted of a day. The Complainant confirmed that she was never paid for any of these appointments and as these were marked as absences, they had a knock-on effect on her bonus pay. If she was out for a day her bonus would be reduced by €20.00. Any decision in relation to this would be made by Ms Barton and the Complainant would only be notified of these deductions on her pay slip.

The Complainant gave evidence that she spoke with Ms Barton in relation to the bonus deductions and she stated that she received a negative reaction and was told that getting paid time off for appointments does not happen all the time. The Complainant outlined the details of the quarterly bonus scheme and opened a number of her pay slips to the hearing to demonstrate how the deductions were applied. The Complainant was asked what the outcome of her discussions with Ms Barton was in relation to these matters and she stated that she got nowhere.

The Complainant gave evidence that the Respondent’s employee handbook outlines the provisions for ante natal appointments. This is outlined in Chapter 5 and in relation to Natal Care Leave it states: “Pregnant employees are entitled to paid time off to receive ante or post-natal care. Two weeks’ notice should be given where possible”.

The Complainant also gave evidence in relation to other medical difficulties she experienced during her pregnancy. She confirmed that at no stage did the Respondent ever refer her to their Occupational Health Physician for a review or have a risk assessment undertaken. The Complainant confirmed that she notified Ms Barton of her appointments in line with the Respondent’s procedures and the only exception would be if an urgent appointment was given to her. The Complainant stated that her elevated blood pressure was an on-going issue during her pregnancy.

The Complainant stated that she was on annual leave for a week in November 2023 and she had an appointment during that time, but she did not request time for this. She was subsequently admitted to hospital for a night and colleagues in the office were aware. When she returned the Complainant stated that Ms Barton said to her, “that’s all sorted now” and made no further enquires in relation to her well-being.

In December 2023 the Complainant experienced additional medical issues and she tried to make herself comfortable in the office. She stated that she had to tell Ms Barton about this issue who told her to go home. She attended her doctor and was certified unfit for work. The Complainant stated that when she returned to work after this episode, she did not find the atmosphere welcoming, and Ms Barton made no enquires in relation to her well-being. The Complainant stated that she found this situation embarrassing.

The Complainant gave evidence that she had an appointment in January 2024 and due to her then medical condition she was admitted to hospital on the basis that she would remain there until the delivery of her baby. The Complainant stated that she kept Ms Barton informed of her situation and sent a medical certificate to her to confirm the position. The Complainant stated that she did not get any text or any message from Ms Barton following this.

The Complainant then outlined that her brother, who also works for the Respondent, informed her that he was given a bag with whatever belongings she had on and in her desk. She did not know who done this but assumed it had to be members of the account’s office team.

The Complainant confirmed that her baby was born on 26/01/2024 following an emergency c-section procedure. She confirmed that her brother informed her colleagues about the birth. The Complainant stated that this occasion was not marked in any way by the Respondent. She received no congratulatory text messages. She remained in hospital until 28/01/2024. She did not communicate with the Respondent at this time due to the premature birth and the care needs of her baby. The Complainant stated that she contacted Ms Barton to apply for parental leave when her maternity leave ended and these 9-week leave was approved without any difficulty. She did not receive any documentation to confirm this.

The Complainant stated that when this leave expired, she arranged to meet Ms Barton to see if she could work different hours. When she attended the meeting there was no congratulations. The Complainant gave evidence that she asked about working part-time and stated that she could do mornings and that she was also open to any other arrangements. The Complainant stated that Ms Barton told her that she knew she was going to request this and stated that everyone has kids. The Complainant stated that Ms Barton told her that the only way she could get part time work was if she had medical issues. The Complainant stated that Ms Barton was aware that she was on medication for high blood pressure. The Complainant stated that at that time she had panic attacks if she was away from the baby. The Complainant confirmed that she told Ms Barton about her medical issues and that she was hospitalised on three occasions for these. The Complainant also confirmed that she was not asked to provide a doctor’s report or referred to the Respondent’s Occupational Health Physician. The Complainant stated that Ms Barton also told her that the Respondent could not accommodate part time work in any other department.

The Complainant stated that she sent an email to Ms Barton on 17/09/2024 following this meeting and told her that she would not be in a position to return to work if the Respondent could not accommodate part time work. The Complainant confirmed that she received the reply from Ms Barton which was sent 40 minutes later and accepted her resignation.

The Complainant gave further evidence that she had informed Ms Barton by text message on 04/01/2024 about the difficulties she had and that these resulted in her hospitalisation.

The Complainant stated that since 17/09/2024 she remains on social welfare and is living with her father and unable to get a mortgage.

The Complainant was asked about the Respondent’s submission which stated that there were no issues in relation to her performance. The Complainant stated that this job was like a breath of fresh air for her as she always wanted an office job. She found the people welcoming when she started. The Complainant outlined how things changed once she informed the Respondent of her pregnancy. She felt low, was crying a lot and found it hard to face into work. She felt this should have been a precious moment for her having her first baby, but she feels that the Respondent took a happy pregnancy away from her. The Complainant stated that all she wanted was to be treated like a human being. The atmosphere was such that she was made feel that she had come something wrong. The workplace definitely changed from that time, and it affected her. The Complainant explained that when she said that she was made feel like she done something wrong she gave an example of where she approached Ms Barton with a query about a particular account. She gave a sarcastic response. On another occasion Ms Barton said to her that the pregnancy was like a kick in the teeth after all she had done for the Complainant.

The Complainant gave evidence that her Supervisor, Ms Shauna Kavanagh, was always helpful and could not do enough for her. There was a tight knit group in the office when she started, and everyone got on fine. Ms Kavanagh was the person who seemed to know how everything worked. The Complainant also confirmed that she was not included in the office WhatsApp group.

Cross examination - the Complainant:

The Complainant was cross examined by Ms Raso on behalf of the Respondent. The Complainant confirmed that she received the email of 22/08/2022 which also had a copy of the employee handbook. It was put to the Complainant that Chapter 7 of the employee handbook outlined the grievance procedure and she agreed. It was put to the Complainant that she did not submit a formal written grievance. The Complainant stated that she did not, but she met Ms Barton to query the payments which were deducted.

The Complainant confirmed that when she started, she was trained by the supervisor who was there at that time. She started on direct debits and then moved to invoicing. This training took about 1-2 days.

The Complainant was asked what her understanding was of the procedure to request time off. She stated that you sent an email request to Ms Barton. The Complainant confirmed that she did not send an email to Ms Barton on 30/06/2023 as she had received word of an urgent appointment and she wanted to finish early to take up this appointment. She did not have advance notice of this appointment. The Complainant stated that the process for seeking annual leave was to email Ms Barton with the request to book.

The Complainant was asked if she was given a reason why the time off was not approved on 30/06/2023 and she stated that Ms Barton said it was because there was a new member of staff in the office, and she could not be on her own. It was put to the Complainant that this was a reasonable explanation. The Complainant disagreed and said that there were other staff in the office at that time. She got a phone call from the Doctors office that day about the appointment and she wanted to finish early to attend. The Complainant confirmed that she was eventually granted the time off but only after she was compelled to tell Ms Barton that the appointment was in relation to her pregnancy. The Complainant confirmed that Ms Barton appeared shocked when she told her about the pregnancy.

The Complainant was asked what she meant when she alleged that Ms Barton asked her if she was still living at home. The Complainant stated that she was hoping to apply for a mortgage as well as dealing with other personal issues.

It was put to the Complainant that in her evidence she said that there was no pregnancy risk assessment carried out. She confirmed that was correct. The Complainant was asked if she had to deal with any hazardous materials or deal with any health and safety issues in the office. The Complainant said that she did not. The Complainant was asked to explain how she felt that Ms Barton’s behaviour towards her changed after she was told about the pregnancy. The Complainant stated that prior to the pregnancy Ms Barton was always helpful, pleasant and dealt with any queries. After she was informed of the pregnancy Ms Barton was short answered, blunt and she made the Complainant feel that she had done something wrong. Ms Barton continued to be helpful to other staff, but she was short with the Complainant. The Complainant gave an example of an account that did not reconcile and when they could not figure it out the Complainant sent an email to Ms Barton. Ms Barton made a suggestion that the Complainant may need additional training. The Complainant stated that she found this to be a negative response and Ms Barton would never have Respondent in that manner previously.

The Complainant confirmed that she was never subjected to disciplinary action or placed on a performance improvement plan. The Complainant was asked to explain what she meant when she said that Ms Barton ignored her in the morning. The Complainant explained that when Ms Barton came in she would not speak with her whereas previously she would have initiated a conversation.

The Complainant was asked about her assertion that Ms Barton was sarcastic and belittling. She explained that the comment about training was belittling, and Ms Barton made a sarcastic comment about asking a potential employee about starting a family.

The Complainant confirmed that she had no involvement in management meetings or recruitment matters. The Complainant was asked what her issue was in relation to training a new employee. She outlined that she had no issue, but it was the overall workload that was the issue and she raised this with Ms Barton. The Complainant said that her workload increased due to a backlog from a previous colleague. The Complainant explained that there were six people in the office, and each had certain categories or sections of work allocated to them. The Complainant was asked how her workload was managed when she was on annual leave. She explained that when you came back you had to catch up on emails and invoicing. You were in charge of your own workload and had to get on with it.

The Complainant was asked if she ever raised a formal grievance after her meeting in September 2023 with Ms Barton in relation to payment for ante natal leave. She said that she did not, but she did raise it with Ms Barton in her office. The Complainant was asked if her bonus was reduced for medical appointments, and she said that it was. She was asked if she provided copies of the appointments to the Respondent, and she confirmed she did with the exception of the first appointment which was made over the telephone at short notice.

The Complainant was asked to clarify what the question was that she put to Ms Barton in November 2023. The Complainant explained that an account holder was looking for a statement and when she spoke to Ms Barton about this, she received a negative attitude. She stated that she asked Ms Barton why she was treating her with such hostility since she told her she was pregnant. The Complainant stated that things did not need to be the way they were.

The Complainant was asked if any other employee got paid for their ante natal appointment’s. She confirmed that there were two and she was aware that one of those was paid for her appointments. She knows this person who works in sales, and she was very supportive to the Complainant.

The Complainant was asked if she submitted a medical certificate for the day, she was sick during her annual leave on 27/11/2023 and she confirmed that she did not. The Complainant was asked about why she should be seen by the Occupational Health, and she stated that when she returned from leave Ms Barton said that it was all sorted now. There was no mention from her of Occupational Health. The Complainant confirmed that she was allowed home in December 2023. She confirmed that she was after experiencing a difficult day at work and she saw her own doctor in relation to this. It was put to the Complainant that it could be difficult to get an occupational health appointment at Christmas time. The Complainant stated that she had no knowledge of how they worked.

The Complainant was asked if she considered Ms Barton’s replies in the text messages to be negative and she stated that she did not think so. It was put to the Complainant that in the text messages between her and Ms Barton from 12/07/2023 to 27/12/2023 there was a lot of emojis which appeared to be smiling faces. The Complainant confirmed that was correct. The Complainant was asked who packed her belongings in the office and she stated that she did not know. They were handed to her brother who works for the Respondent.

The Complainant was asked if it was her evidence that when her baby was born no one from work congratulated her and she confirmed that was correct.

It was put to the Complainant that when she met with Ms Barton on 12/09/2024 that her job was still there. She confirmed that it was, and she was aware that there was a new system in place. The Complainant was asked if there were any changes to her role and terms and conditions and she stated that these were not discussed. It was put to the Complainant that she requested to return on a part time basis, and this was refused. She was asked what reasons were given to her for the refusal. The Complainant stated that Ms Barton said that it did not work for them or her team. Ms Barton needed medical reasons to consider part time working.

The Complainant was asked if she was eager to return to work and she confirmed that she was. She would be anxious leaving the baby, but she wanted to return to work. The Complainant was asked if she was aware of any other employee who was working on a part time basis, and she confirmed that she was aware of one engineer, but she was not sure if anyone in the office was.

Closing submission:

Mr Landers made a closing submission on behalf of the Complainant. It is accepted that the burden of proof in this case rests with the Complainant. He noted that the case of Arturs Valpeters v Melbury Developments [2010] 21, ELR 64, addressed the onerous nature of the burden of proof:

“This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculations or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of proof fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”

Mr Landers noted that in relation to the primary facts it is not necessary to rely on any of the facts which are in dispute in this case. The following facts are not in dispute:

· The date the Complainant commenced employment

· The fact that she was pregnant

· The date she notified the Respondent of her pregnancy

· The interpersonal difficulties with Ms Barton

· She was hospitalised in November 2023 due to high blood pressure

· She returned to work the following day

· She attended the Coombe hospital on 02/01/2024

· She sent a letter from the hospital to the Respondent confirming her confinement

· The text messages she received from Ms Barton are not disputed

· Her office possessions were collected and given to her brother

· She arranged a meeting with Ms Barton to discuss reasonable accommodation, i.e., to work mornings due to issues related to her pregnancy

· She was denied this request

· On receipt of the decision to refuse her reasonable accommodation she communicated with her employer

· Her employer accepted her decision almost immediately (40 minutes later)

· From 30/06/2023 to 17/09/2024 she was never referred by the Respondent to the company doctor for any kind of assessment

· She was required to climb a flight of stairs daily during her pregnancy complications.

The law requires that facts are presented from which discrimination can be inferred. The law also requires an employer to maintain a safe place of work. This is a statutory provision and not a mere tick-box exercise. Pregnancy is a vulnerable condition, and it is for this reason that there are powerful protections in place.

Any award of compensation must act as a deterrent. In this case a deterrent is not an onerous financial burden given that the Complainant was in receipt of an annual salary of €24,000 plus a quarterly bonus of €500.00. If the Complainant’s total remuneration was €29,500 then the maximum compensation would be €59,000. It is accepted by the Complainant that absences prior to her maternity leave took place. However, the Complainant cannot be penalised for attending ante natal appointments.

In relation to the Respondent’s position that this complaint is out of time, this is denied as the Complainant had submitted her complaint in January 2024. It was also submitted that the Adjudication Officer could take into account if the Complainant made any contribution to her dismissal.

Summary of Respondent’s Case:

The Respondent operates an alarm and CCTV monitoring centre which provided services to residential and commercial customers nationwide. The Respondent employs approximately 54 staff of which 14 are female and 41 are male. The Respondent notes that the complaint under the Maternity Protection Act, 1994 was submitted outside the statutory six-month time limit prescribed under Section 28(2) of the Act. While the Complainant has sought an extension of time, the Respondent asserts that no exceptional circumstances have been demonstrated and therefore the extension should be refused. In relation to the Complainant’s complaints under the Parental Leave Act, 1998 it is submitted on behalf of the Respondent that she availed of her full entitlement to parental leave from 22/07/2024 until 15/09/2024. The Complainant did express a wish to return on a part-time basis and this was considered and lawfully declined on operational grounds. The Complainant’s full-time role remained open to her.

The complaints under the Employment Equality Act, 1998 on grounds of gender, pregnancy, family status, disability and victimisation are all strongly denied by the Respondent. No such complaints were raised by the Complainant during her employment. The Respondent maintains that they always acted lawfully and in good faith. The Complainant resigned.

Evidence - Ms Elaine Barton:

Ms Elaine Barton gave evidence on oath on behalf of the Respondent. She confirmed that she commenced employment with the Respondent in July 1997 as the Accounts Manager. She provided an overview of her duties and responsibilities which included invoicing, leave management and payroll.

Ms Barton gave evidence that she became aware of the Complainant’s pregnancy when she came to her in relation to taking some time off. Ms Barton confirmed that she congratulated her on the news and she responded to her in the same manner as she did to the other two employees who were pregnant at that time. Ms Barton confirmed that the duties of the colleague were shared and not totally passed to the Complainant. Ms Barton stated that the Complainant was not forced to tell her about the pregnancy. She had requested time off for an appointment and this was granted when she said that it was pregnancy related. Ms Barton stated that she does not recall saying anything to the Complainant about still living at home.

Ms Barton gave evidence that she did not consider that her relationship with the Complainant deteriorated after she was told about the pregnancy. She was treated in the same manner as when she started working with the Respondent. Ms Barton stated that she would only have mentioned training as an option if there were recurring errors. The process that is in place when a performance issue arises is that a review meeting is scheduled with the employee. This did not happen with the Complainant as it was not required. Ms Barton also denied that she ignored the Complainant in the morning. She would say a general good morning to all the team. Ms Barton stated that it was not in her character to belittle anyone. Ms Barton agreed that the Complainant would get upset on occasions and this usually occurred when she was questioned about an issue.

Ms Barton was asked about the backload of work which was left when a colleague resigned in July 2023. She explained that the Complainant and this employee managed a particular side of the business. The duties which were left were shared with other colleagues. Ms Barton agreed that there were no issues with the Complainant apart from one day and she was given time off to assist.

Ms Barton also confirmed that she was responsible for recruitment matters and stated that she would not discuss what happens at interviews in the office. She stated that the comment which the Complainant attributed to her about a candidate is not something that would ever be asked at an interview. Ms Barton confirmed that they currently employ approximately 50 employees. Ms Barton stated that she did not recall meeting with a director in 2023 as alleged by the Complainant. Ms Barton was asked about the payments for ante natal appointments. She confirmed that the Complainant had asked her about this in October 2023 and she overlooked it. She confirmed that the Complainant was given time off for these appointments. Ms Barton stated that there was no discrimination against the Complainant in relation to her appointments. She also confirmed that the Complainant never submitted a grievance or raised any complaints in relation to these payments.

Ms Barton outlined details of how the Respondent’s bonus structure worked. It was paid quarterly and based on KPI’s such as absence, mobile phone use and targets. Ms Barton confirmed that if an employee was out for a day there was deduction of €20.00 and this included medical appointments.

Ms Barton stated that she did not accept the Complainant’s view when she stated that she regarded her pregnancy as a kick in the teeth. She stated that this is not the kind of character she is, and she would never speak to people in those terms. Ms Barton also confirmed that when the Complainant was on a week’s annual leave in November 2023, she informed her that she was in hospital for a night, but she did not submit any medical certificate in relation to this. Ms Barton also confirmed that she sent the Complainant home in Nov/Dec 2023 as she was experiencing some medical issue at work and the Complainant went to her GP and was out sick the following day, but she could not recall if a medical certificate was received. Following this the Complainant was hospitalised in January 2024 and she responded that she hoped all would be okay. Ms Barton stated that the Respondent was told by the Complainant’s brother about the birth of the baby.

Ms Barton stated that the Respondent had no issue with the Complainant attending any doctors’ appointments. They wanted to do the best they could for the Complainant or any employee in the same situation. Ms Barton confirmed that it was a colleague of the Complainant’s who collected her office belongings. She had no role in relation to this. Ms Barton also confirmed that she did not contact the Complainant when she was on maternity leave as she was aware that she had a lot going on. Ms Barton also confirmed that the Complainant’s request for parental leave was approved and granted. Ms Barton stated that the Complainant requested a meeting with her, and this was arranged for 12/09/2024. She stated that she felt that she had a good relationship with the Complainant, and she was expecting her to return to work. In relation to ante-natal requests Ms Barton clarified that these are not confirmed in an email but are approved on a shared calendar system.

Ms Barton outlined that the meeting on 12/09/2024 took place as planned. The Complainant arrived with her baby. She congratulated her and the Complainant spoke about her pregnancy. Ms Barton stated that she was sympathetic towards her. The Complainant asked if she could return on a part-time basis, and she told her that this could only be considered on medical grounds and then she could push for approval from the CEO. Ms Barton explained that part-time was never done in the office. This was because they had a large customer base and part-time work would not work in the finance or sales office. Ms Barton stated that she was “gutted that she was not returning” when she subsequently received the Complainant’s email resignation on 17/09/2024.

Ms Barton was asked about the Complainant’s evidence that no one congratulated her on the birth of her baby. Ms Barton stated that she only became aware of the birth when the Complainant’s brother told them in the office. Ms Barton also disagreed with the Complainant’s evidence that she had taken a happy pregnancy away from her and stated that the Complainant’s pregnancy was treated the same as any other pregnant employee. Ms Barton stated that she had no knowledge or involvement in the office WhatsApp group chat. Ms Barton stated that the Respondent only became aware of the issues the Complainant had when her brother told them about it and then the saw the details on the WRC complaint form.

Cross examination - Ms Elaine Barton:

Ms Elaine Barton was cross examined by Mr Landers on behalf of the Complainant. She confirmed that she started as an accounts manager in July 1997. It was put to Ms Barton that it was clear that she disputed a lot of the Complainants’ evidence, and her cross examination would not focus entirely on this but on clarifying other points.

Ms Barton confirmed that she reported to the CEO, Mr Derek Ramsay. Ms Barton confirmed that Mr Ramsay was her brother. It was put to Ms Barton that because the CEO was her brother, she would be perceived to carry weight in relation to the business. Ms Barton confirmed that she did not and that she is responsible for payroll and rosters for the whole company. Ms Barton confirmed that there was no need for a review meeting with the Complainant. She was asked about a meeting she had with the Complainant in relation to what was described as “backchat” in the office. Ms Barton confirmed that this matter was dealt with informally.

Ms Barton was asked if employees talk about the bonus. She confirmed that office staff would. She stated that she is a manager who likes to help employees and she shares tasks with the team. Ms Barton clarified that she deals with disputes by reviewing tasks and then sharing them out. Ms Barton also clarified that there are social nights which consist of a Christmas night and some colleagues organising a social night out.

Ms Barton confirmed that she got the letter sent by the Complainant in January 2024 in relation to her hospitalisation. Ms Barton stated that the Complainant did not get in touch after that, and she was not aware of what was happening. She also confirmed that she did not visit the Complainant in hospital. Ms Barton was asked what she meant when she stated that she felt that the Complainant had a lot going on. She clarified that the Complainant was just after having a baby.

It was put to Ms Barton that in the meeting on 12/09/2024 the Complainant’s part-time request was not considered. Ms Barton stated that the Respondent did not have part-time work arrangements and there was no medical evidence provided by the Complainant which would have allowed them to consider it. It was put to Ms Barton that if she asked the Complainant for medical evidence, she would have provided it. Ms Barton stated that the Complainant stated that everything was now okay. Ms Barton confirmed that the Complainant was not asked to attend the company doctor. Ms Barton was asked if it was appropriate to treat maternity leave absences as sick leave. She confirmed that the Complainant was deducted for medical leave. Ms Barton was asked if the Respondent paid employees when on maternity leave. She confirmed that they did not an only paid ante natal leave. She also confirmed that employees continue to accrue annual leave when on maternity leave. Ms Barton confirmed that the Complainant was not paid for annual leave due when her employment finished. She was paid for public holidays.

A copy of the WRC Plain English Guide “Your Maternity Leave Rights Explained” was opened at the hearing. It was put to the witness that this is a plain English guide to an employee’s rights under the Maternity Leave Acts. Ms Barton confirmed that she was not aware of this document. It was put to Ms Barton that this guide outlined the pay entitlements for an employee when on maternity leave as follows:

“Your employer does not have to pay you when you’re on maternity leave.

· However, your employer must pay you:

· When you are receiving antenatal or post-natal care;

· When you are attending antenatal classes;

· When you are taking time off or working reduced hours for breastfeeding;

· During the first 21 days of health and safety leave.”

Ms Barton confirmed that she agreed with what was quoted in the document. It was also put to Ms Barton the document outlined an employee’s right to return to their job after their maternity leave under the same terms and conditions. She agreed that these were outlined. Ms Barton was asked if the Respondent considered Health and Safety leave for the Complainant. She stated that there was another manager responsible for all health and safety matters. Ms Barton was asked if she now considered that the Respondent met their Health and Safety obligations to the Complainant as set out in the guide and she confirmed that they did not.

Evidence - Ms Shauna Kavanagh:

Ms Shauna Kavanagh gave evidence on oath on behalf of the Respondent. She confirmed that she is the accounts supervisor with the Respondent. She commenced in this role in June 2021. Ms Kavanagh outlined that she attended the meeting on 12/09/2024 with Ms Barton. The Complainant attended the meeting which was about her returning to work. The Complainant outlined the difficulties she had with her pregnancy and the ongoing panic attacks she was experiencing. She asked if she would work for a few hours in the mornings and do part-time work. Ms Kavanagh also stated that the Complainant asked to be let go if this was not possible otherwise, she would not be eligible for social welfare payments.

Ms Kavanagh stated that she got the email from the Complainant stating that she was resigning. Ms Kavanagh also stated that there were two other employees who were pregnant at that time. There were no employees working part-time.

Cross examination - Ms Shauna Kavanagh:

Ms Kavanagh was cross examined by Mr Landers on behalf of the Complainant. Mr Landers stated that she was always a good friend to the Complainant who found her supportive, and he wish to acknowledge this fact on behalf of the Complainant.

Ms Kavanagh was asked about two named female employees who worked in the office occasionally. She confirmed that they were daughters of the CEO. It was put to Ms Kavanagh that these two employees worked on a part time basis, and she confirmed that they did.

Mr Landers confirmed that he had no further questions for the witness.

Closing submission:

Ms Raso made a closing submission on behalf of the Respondent. She stated that the Complainant has not made out a prima facie case under the Employment Equality Act. She has also not established that her complaint is within the six-month qualifying period under the Act. The Complainant was on Maternity Leave from January 2024 until 24 July 2024 and following this she was on 9 weeks Parent Leave. There was a position available to the Complainant to return to, but she wanted to return on a part-time basis. There is no obligation on an employer to grant such a request and it must be noted that part-time work was not available.

There was no evidence of any grievances being submitted by the Complainant and there was also no evidence of any medical conditions. The Complainant did not produce any medical evidence at or after the meeting on 12/09/2024. Any issues that the Complainant had prior to that were brought on by her pregnancy. In addition to this there was no health and safety issues ever raised by the Complainant and this was purely because there were none.

It was submitted on behalf of the Respondent that they acted lawfully and in good faith at all times. The Complainant was not dismissed but she resigned from her employment. The role she had prior to her maternity leave remained available to her on a full-time basis and continues to be so.

Findings and Conclusions:

The Complainant submitted a complaint to the Workplace Relations Commission on 23/01/2025 that she was discriminated against by the Respondent on the basis of her gender, family status, disability and not receiving promotion. In her complaint form she also alleges that she was victimised, harassed, and was not provided with reasonable accommodation. She lists the most recent date of discrimination as 17/09/2024. Her complaint form was submitted 4 months and 6 days after the date which she states as the most recent date of discrimination. While there are a number of other complaints submitted the Complainant’s representative clarified that their primary complaint is that of discriminatory constructive dismissal and seeking adjudication under Section 77 of the Employment Equality Act, 1998.

The Respondent submits that the complaints are out of time pursuant to Section 28(2) of the Maternity Protection Act, 1994. Section 31 of the Act stipulates that a dispute should be submitted within the period of six months from the date on which the employer is informed of the pregnancy, in this case June 2023. The Act also provides an extension under exceptional circumstances for a period not exceeding 12 months. The Complainant told the Respondent on 30/06/2023 about her pregnancy. I accept the Complainant’s evidence that she felt compelled to inform the Respondent at that time due to the refusal to allow her to leave an hour early to attend an urgent appointment. However, the specific timeline in the Maternity Protection Act, 1994 means that I do not have jurisdiction to hear the complaint submitted under this Act.

It must be noted that a woman on maternity leave is a particularly protected class of person. The Employment Equality Act is a remedial social statute, and this had a broad application in order to give effect to the European Law Directives and European Law jurisprudence applicable to this area.

The Complainant notified her employer of her pregnancy on 30/06/2023 and her complaint was submitted to the WRC on 23/01/2025. That is a period of 6 months and 24 days. I am mindful of the Labour Court Case of EDA2322 which held that “The dismissal of a woman due to pregnancy of maternity leave is a breach of a fundamental right guaranteed directly by an EU directive. As such, it must be regarded as among the most egregious breaches of employment law”. The Complainant submits that the discrimination and other matters complained of continued up to 17/09/2024. Given the circumstances of this case I am satisfied that there are exceptional circumstances which allow me to permit the case under the provisions of the Employment Equality Act to be heard.

Section 6 of the Employment Equality Act, 1998, states:

“6.— (1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where—

(a) 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) (in this Act referred to as the ‘discriminatory grounds’) which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(b) a person who is associated with another person—

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.]

(2) 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”),

(b) that they are of different civil status (in this Act referred to as “the civil status ground”),

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

(d) that they are of different sexual orientation (in this Act referred to as “the sexual orientation ground”),

(e) that one has a different religious belief from the other, or that one has a religious belief and the other has not (in this Act referred to as “the religion ground”),

(f) that they are of different ages, but subject to subsection (3) (in this Act referred to as “the age ground”),

(g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as “the disability ground”),

(h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”),

(i) that one is a member of the Traveller community and the other is not (in this Act referred to as “the Traveller community ground”)”.

This complaint is made pursuant to the Employment Equality Acts on the basis that the Complainant was discriminated by the Respondent because of the difficulties she experienced.

The Burden of Proof

The Equality Act 2004 inserts a new section, 85A, into the Employment Equality Acts 1998 – 2015.

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

The effect of s.85A above is to place the burden of proof in the first instance on a Complainant, to establish facts which, on an initial examination, lead to a presumption that discrimination has occurred. Referred to as “prima facie” evidence, in the context of this adjudication hearing, the responsibility was on the Complainant to show that, based on the primary facts, she has been discriminated against because of her gender, family status, disability and not receiving promotion. I note that she also alleges that she was victimised, harassed and was not provided with reasonable accommodation.

The explanation provided by the Labour Court in its decision on Arturs Valpeters v Melbury Developments [2010] 21, ELR 64, which addresses the onerous nature of the burden of proof is also helpful:

Bolger, Bruton, Kimber; Employment Equality Law 2nd Ed. 2022 at para 2-207 commenting on Southern Health Board v Mitchell (2001) E.L.R. 201 noted:

“This test requires that facts relied upon by a Complainant must be proved by them to the satisfaction of the Tribunal or Court at the level of balance of probabilities and if proven, must be of sufficient significance as to raise an inference of discrimination. In the case before it, the Labour Court found, on the facts of the case, that the Complainant could not demonstrate superior qualifications and experience than the successful appointee and that she therefore failed to discharge the burden of proof that rested on her”.

In Cork City Council v McCarthy (2008) EDA0821 the Labour Court also stated:

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

In deciding whether the Complainant has discharged the burden of proof as set out in section 85A of the Act above, I must consider the totality of her evidence given at the hearing. In the first instance, I note that she has linked the alleged interaction and behaviour to the grounds of gender and family status as specified in the Act.

The Primary Facts:

The primary facts in this case are:

1. The Complainant was an employee of the Respondent

2. Her gender is female

3. She became pregnant

4. She informed her employer in June 2023

5. She was not paid for ante natal appointments

6. Her bonus was affected by virtue of her attendance at ante natal appointments

7. She experienced difficulties with her manager after informing her of the pregnancy

8. There was no risk assessment carried out in relation to what, if any, accommodations might be required

9. The Complainant was hospitalised for a day during her pregnancy and was later hospitalised until the birth of her baby

10. The Complainant’s belongings were collected and returned to a family member without any consent or discussion with the Complainant

11. She was refused part-time work on the basis that it never took place

12. Part time work was allowed for family members of the Respondent

13. The Respondent did not meaningful engage with the Complainant in relation to return to work options and a potential timescale

14. Despite acknowledging that payments to the Complainant “may have been overlooked” there was no offer by the Respondent to rectify this flagrant mismanagement of her statutory entitlements.

Arising from the evidence in this case and the facts outlined above I am satisfied that the Complainant has presented facts from which it may be presumed that the principle of equal treatment has not been applied to her. Therefore, the responsibility for proving that discrimination did not occur shifts to the Respondent. This is the starting point for this case.

The complaint under the gender and family status grounds in the present case arises on foot of the Complainant’s pregnancy resulting in her exercising her right to attend paid maternity appointments and her attempt to return to her job post-protective leave on a part-time basis. The European Court of Justice (ECJ) held in the case of Dekker -v- Stichting Vormingscentrum voor Jong Volwassen (Case C-177/88) that unfavourable treatment as a result of or connected to pregnancy is direct discrimination on the grounds of gender. It later held in Mary Brown V. RentokilInitial UK Ltd (formerly Rentokil Ltd) (Case C-394/96) that the entire period of pregnancy and maternity leave is a protected period during which both the EU Equal Treatment Directive and EU Pregnancy Directive prohibit dismissal on grounds of pregnancy and dismissal of a pregnant employee during that period can only occur in exceptional circumstances unrelated to pregnancy or maternity.

While these cases related to appointments and dismissals, the approach adopted in these cases has also been recognised as extending to the terms and conditions of employment by the European Court of Justice in the case of Caisse Nationale d'Assurance Vieillesse des Travailleurs Salariés (CNAVTS) v Evelyne Thibault. CNATVS -v- Evelyne ThibaultCase (C-136/95) wherein it stated: "It must therefore be held that a woman who is accorded unfavourable treatment regarding her working conditions, in that she is deprived of the right to an annual assessment of her performance, and therefore, of the opportunity of qualifying for promotion as a result of absence on account of maternity leave, is discriminated against on the grounds of her pregnancy and her maternity leave. Such conduct constitutes discrimination based directly on grounds of sex within the meaning of the Directives."

It was clear from the evidence of the Respondent’s witnesses that there was a lack of knowledge in relation to the protection afforded to pregnant employees. There was no credible explanation to explain why a risk assessment, paid time off for maternity related appointments and meaningful and tangible efforts to reasonably accommodate the Complainant were not undertaken. There were inconsistencies in the some of the Respondent’s evidence. There was no explanation given as to why an employee was paid for her appointments and the Complainant was not. This does not align with the Respondent’s testimony that they treated all pregnant employees equally. In relation to the initial time off request the Respondent relies on the fact that this was actually granted. However, the fact remains that it was initially refused and only granted when the Complainant felt compelled to disclose the nature of the appointment. It is also remarkable that the Complainant’s manager felt that she had no role in relation to Health and Safety leave for the Complainant and that this was the responsibility of another manager. Again, this does not align with the Respondent’s position that they acted in good faith at all times in relation to the Complainant. It is also a fact that the Respondent denied that there was any part-time work given to any employee. However, relatives of the CEO were afforded this opportunity and it was not even considered for the Complainant.

The Respondent confirms that the role held by the Complainant remains vacant. The Respondent was unable to justify why a part time employee would not be of assistance in that situation and particularly given the high turnover outlined by the Respondent.

I find that the Complainant was discriminated against on the gender and family status grounds.

I find that she adduced facts of sufficient significance as to raise a presumption of unlawful discrimination, such that the burden shifts to the Respondent to ‘prove the contrary’ which it failed to do.

In view of this finding the Complainant is entitled to redress that is effective; that has a genuine dissuasive effect with regard to the employer; and that is commensurate with the injury suffered by her.

I do not consider that reinstatement or reengagement are appropriate in this case. The Complainant was earning a salary (including bonus) of €26,000. I therefore considered the Complainant’s present loss, future loss and her loss of statutory protection, and the effects of the dismissal on the Complainant and to ensure that there is a dissuasive effect with regard to the employer I award her the sum of €50,000.

The Complainant has submitted two additional complaints seeking Adjudication under Section 18 of the Parental Leave Act, 1998. Her first complaint related to penalisation for proposing to or exercising her or entitlement to parental leave. Many of the details relating to the penalisation are a repetition to similar those outlined in the equality discrimination complaint. In view of my findings, I do not propose to issue an additional finding in relation to this aspect of the complaint.

The Complainant’s second complaint relates to her entitlement to parental leave. From the evidence adduced it is not disputed that the Complainant’s maternity leave ceased on 21/07/2024 and she sought and was granted parental leave from 22/07/2024 until 15/07/2024. According to the evidence adduced she did receive her entitlements. The Respondent raised an issue in relation to whether this was parent leave or parental leave. The Respondent did not provide any documents to confirm and clarify which leave was approved. In their submissions the only reference was to Parental Leave. I have decided that this complaint is not well-founded.

I have decided that I do not have jurisdiction to hear the complaint seeking adjudication under Section 30 and 31 of the Maternity Protection Act 1994 as it is deemed out of time.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

CA-00068806-001: I have decided that this complaint is well-founded and that the Complainant was discriminated against by the Respondent. I award her the sum of €50,000

CA-00068806-002: I have decided that this complaint is well-founded and the award is included in the previous complaint.

CA-00068806-003: I have decided that this complaint is not well-founded.

CA-00068806-004: I have decided that this complaint is not well-founded.

CA-00068806-005: I have decided that I do not have jurisdiction to hear the complaint seeking adjudication under Section 30 and 31 of the Maternity Protection Act 1994 as it is deemed out of time.

Dated: 31-07-2025

Workplace Relations Commission Adjudication Officer: John Harraghy

Key Words:

Maternity leave, discrimination.