Employee awarded €14K for being dismissed due to their pregnancy via sham redundancy
 

In the case of a Bar Manager vs A Hotel, (ADJ-00013503), the complainant took a claim under the Equality Act alleging that she was discriminated against by her employer on the grounds of gender when she was dismissed due to her pregnancy.

 

The complainant was employed as a bar manager from 3 April 2017 until 5 September. In her submission, she stated she had successfully passed probation and managed a team of 25-30 staff.  In addition, she had suffered a difficult pregnancy and was forced to take several days off work due to this. Her employer was aware of the reason for the absences.

 

When she returned to work after an absence in July 2017, she was called to an investigation meeting to discuss her absences. In this meeting she advised the General Manager that she had suffered a miscarriage and she was called to a subsequent disciplinary hearing on 27 July and was issued a first written warning.

 

Later she took compassionate leave which was granted when her grandfather passed away. When she returned to work on 4 September, she informed the General Manager the following day that she was pregnant. Later that same day she was asked to meet with the General Manager and the HR/Training Executive where she was told that due to financial issues, her role was being made redundant. She received a letter on 6 September that explained her redundancy.

 

According to the employer’s statement at the hearing, the redundancy was due to decreasing financial performance of the company and “solely on economic grounds.” They claimed that they did not know she was pregnant, and she was invited to apply for other roles.

 

Outcome

 

In summing this case, the adjudicator explored whether discrimination took place and re-stated from case law how the employer must “bear the burden of proving that the dismissal was grounded on exceptional circumstances unrelated to pregnancy or maternity.”

 

Having found that the employer was aware that the employee’s absences were related to her pregnancy, that she believed she had a miscarriage and had suffered mental health difficulties, the adjudicator stated that the established facts “are of sufficient significance to raise an inference of discrimination”. In addition, the HR and Training Executive confirmed that during his two years prior to the dismissal of the employee, he had never once seen a redundancy within the hotel.   

 

The adjudicator concluded that there was no evidence of a genuine redundancy situation and no consultation, procedure or genuine attempts to save the role given to the employee. The adjudicator stated that the “dismissal was tainted with discrimination” and the “Complainant’s pregnancy was a significant factor contributing to her dismissal.

 

The former employee was awarded €14,000 compensation in relation to her dismissal and the adjudicator added that the award would have been higher if the employee had worked longer within the hotel.

 

Lessons for employers

  • It is crucial that employers are aware that pregnant employees receive significant protection under the Maternity Protection Acts. To learn more about pregnant employee’s rights and entitlements please see our guideline here.
  • Whilst it is important to manage excessive absences, a balanced and sensitive approach is needed when it comes to light that an employee is undergoing difficulties.
  • Redundancy should be a last resort when it comes to making a role redundant and should never be used as a convenient way to get rid of a pregnant employee. The person who is being made redundant should be informed that the role is at risk, be given the opportunity to consult on ways to save the role and be offered the right to representation. To learn more about redundancy please view our guideline here.
  • This employee was in employment for five months and there can be a perception that employees with less than one year’s service have limited rights, however, pregnant employees are protected from dismissal and can make an Unfair Dismissal claim without the one year service entitlement. To learn more about dismissals please view our guideline here.

In the coming months there will be changes to parental leave and the introduction of a new paid parental leave benefit. We will be discussing these at the SFA Employment Law seminar on 3 October in Limerick and 17 October in Dublin so you can book your place today and be informed of these new changes as they come into force.

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