Complainant

Respondent

Parties

Nayla Matilde  Chura Cadedo

Milgan & Dilgan Ltd T/A Sos Group

Representatives

Gareth Kyne MSS Ireland Limited

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-00078953-002

23/12/2025

The Complainant commenced employment with the Respondent as a Cleaner in August 2023. She notified the Respondent of her pregnancy in February 2025 and commenced maternity leave on 14 July 2025. Her child was born on 25 August 2025. The Complainant's expected return date from maternity leave was 18 January 2026.

The Complainant stated that she was dismissed during her maternity leave. Specifically, she stated that she had become aware that her employment had been recorded as ceased with Revenue with effect from 30 November 2025 and that she had received payment in respect of accrued annual leave without any notification, consultation or explanation from the Respondent.

The Complainant gave evidence that she became aware in December 2025 that her employment had been marked as ceased on Revenue. She stated that she regarded this as indicating that her employment had ended. She also received payment in respect of accrued holiday entitlements in or around 2 December 2025.

The Complainant accepted in cross-examination that she did not contact the Respondent after receiving her payslip of 2 December 2025. She further accepted that she did not contact the Respondent after observing the cessation of employment on the Revenue system on or about 17 December 2025. She did not contact either HR or her line manager prior to lodging her complaint with the WRC on 23 December 2025.

The Complainant stated that she had been suffering from post-partum depression following the birth of her child and that this impacted upon her actions during the period in question. The Complainant accepted that she completed a visa renewal application in early December 2025 and that she sought advice and completed a WRC complaint form during the same period.

The Head of Cleaning Operations stated that the Respondent employed in excess of 700 employees and regularly conducted data-cleansing exercises because of significant staff turnover. She stated that during such an exercise in November 2025 she reviewed payroll records and incorrectly concluded that the Complainant had left employment as she appeared not to have worked for an extended period. She further stated that she noted that the Complainant's immigration permission was due to expire shortly and incorrectly assumed that the Complainant had left employment.

The witness accepted that she failed to check the HR system which would have shown that the Complainant was on maternity leave. She stated that had she done so she would not have instructed payroll to process the Complainant as a leaver. She further gave evidence that another employee who was absent on long-term sick leave was mistakenly processed in the same manner.

The Head of HR stated that the Respondent first became aware that an issue existed upon receipt of the WRC complaint on 19 January 2026. Following an investigation she contacted the Complainant, explained the error, restored the Complainant's active status with Revenue and repeatedly confirmed that the Complainant remained an employee and that work was available for her. The witness stated that the Complainant declined to return to work and ultimately indicated that she did not intend to return.

Documentary evidence was produced showing written communications from January to May 2026 in which the Respondent repeatedly explained the error, apologised and confirmed that the Complainant remained employed. The Complainant replied on 6 March 2026 stating that she did not intend to return to her role.

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 brought pursuant to the Employment Equality Acts on the basis that the Complainant alleges she was subjected to discriminatory treatment on the gender ground arising from her pregnancy.

The Burden of Proof

“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 Section 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.  Accordingly, the initial burden rested on the Complainant to establish primary facts from which discrimination on the gender ground, including discrimination arising from pregnancy, could be presumed. I note that a comparator is not required in cases alleging discrimination arising from pregnancy.

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:

“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.”

In deciding whether the Complainant has discharged the burden of proof as set out in section 85A of the Act above in respect of the instance case, I must consider whether there was a dismissal, if this was connected to her pregnancy and if I find it was, if the Respondent can then discharge the burden of proof to suggest otherwise.

Was there a dismissal?

The first question is whether an act capable of constituting dismissal occurred, assessed objectively by reference to how it would reasonably have been understood by the Complainant, rather than by reference to the Respondent's subjective intention.

I am satisfied that the recording of the Complainant's employment as ceased with Revenue with effect from 30 November 2025, followed by payment to her of accrued annual leave entitlements without explanation, was an act capable of objectively communicating to a reasonable employee in the Complainant's position that her employment had been terminated. I do not accept that the absence of any subjective intention on the Respondent's part to end the employment is, of itself, determinative of whether a dismissal occurred. The Respondent's intention goes to the explanation for that act, not to whether the act was capable of constituting a dismissal in the first instance.

I find, therefore, that a dismissal within the meaning of the Acts occurred on or about 30 November 2025.

The Respondent's evidence, which I accept, is that upon becoming aware of the error following notification of the WRC complaint on 19 January 2026, they promptly investigated, restored the Complainant's active status with Revenue, and repeatedly confirmed in writing between January and May 2026 that the Complainant remained an employee and that work was available to her.

I am satisfied that this conduct amounted to an unequivocal rescission of the dismissal, communicated to the Complainant promptly upon the error coming to light, and that the Complainant was thereafter offered unconditional reinstatement to her employment on the same terms as previously applied. The Complainant declined that offer and confirmed on 6 March 2026 that she did not intend to return to her role.

Having found that a dismissal occurred but was subsequently rescinded and replaced by an unconditional offer of continued employment, the question becomes whether that original dismissal was connected to the Complainant's pregnancy or maternity leave, such that the discrimination claim survives notwithstanding the rescission.

Was the dismissal connected to pregnancy/maternity?

The dismissal occurred while the Complainant was on maternity leave, within the protected period.  It is clear from the well-known CJEU case C-177/88, Dekker v Stichting Vormingcentrum voor Junge Volwassenen[1990] ECR 1-3841 and from all of the jurisprudence in this area that the dismissal of a pregnant woman is sufficient to raise an inference of discrimination on grounds of gender.

The burden accordingly shifts to the Respondent to prove that the treatment was in no way connected to the Complainant's gender, pregnancy, or maternity leave.

Has the Respondent discharged the burden?

I found the evidence of the Head of Cleaning Operations candid and credible. She gave a clear and detailed account of a data-cleansing exercise conducted in November 2025 across a workforce in excess of 700 employees, explained that she failed to check the HR system before instructing payroll, and accepted responsibility for that failure. Critically, the evidence — which I accept — that a second employee, absent on unrelated long-term sick leave, was mistakenly processed as a leaver during the same exercise, corroborates that this was a systemic administrative failure affecting employees on approved absence generally, rather than treatment targeted at the Complainant because of her pregnancy or maternity leave.

Considering the foregoing, I am satisfied that the Respondent has discharged the burden of establishing that the dismissal, though it occurred during the protected period, was in no way connected to the Complainant's gender, pregnancy, or maternity leave, but arose instead from an administrative process failure affecting absent employees without regard to the reason for their absence.

I find that although the Complainant established a prima facie case of discrimination given that the dismissal occurred during her maternity leave, the Respondent has discharged the burden of proving that the dismissal arose from an administrative error affecting employees on approved absence generally.