+353 (0)1 5175900 +353 (0) 404 20688 |wendy@wdsolicitors.ie

In the case of A Community Development Officer v A Family Resource Centre the Complainant (employee) alleged that she as dismissed on the grounds of gender due to pregnancy.

The Complainant commenced employed as a part-time Community Development / Family Support worker on 1st November 2016. At the commencement of her employment, the Complainant was in the early stages of pregnancy. The Complainant alleged that she began to experience difficulties with her immediate line manager shortly after the commencement of her employment. In particular, the Complainant referred to an incident whereby she was informed that she was not physically working hard enough at an event. She was eventually called to a meeting and told that there were a number of issues which required investigation.

The Complainant then went on short periods of sick leave and was eventually called to a meeting on 8th March. She was eventually informed she was to be dismissed for gross misconduct. The Complainant did not appeal the sanction as she was under enormous stress and felt it could harm her baby.

The Workplace Relations Commission referred to a number of cases in respect of discrimination on the grounds of gender and noted:

“In the case of Dekker v Stichting Vormingscentrum voor Jong Volwassenen (VJV-Centrum) [1990] ECR 1-3941, the European Court of Justice held that since pregnancy is a uniquely female condition, less favourable treatment on the grounds of pregnancy constitutes discrimination on the grounds of gender”.

It further noted:

“In the matter of Teresa Cross (Shanahan) Croc’s Hair and Beauty & Helen Ahern EDA195, the Labour Court set out the protections afforded to pregnant women in the following terms,

“Since the decision in Dekker the protection afforded to pregnant women in employment has been strengthened considerably in the case law of the CJEU and in the legislative provisions of the European Union. Equality on grounds of gender is now expressly guaranteed by Article 23 of the Charter of Fundamental Rights of the European Union.

The Charter is now incorporated in the Treaty on the Functioning of the European Union (the Lisbon Treaty) and has the same legal standing as all preceding and current Treaties. It can thus be properly regarded as part of the primary legislation of the European Union.

The jurisprudential principle that discrimination on grounds of pregnancy constitutes direct discrimination on grounds of sex is now codified in Directive 2006/54/EC on the Principle of Equal Treatment of Men and Women (the Recast Directive). This Directive provides, at Article 2. 2 (c), that any less favourable treatment of a woman related to pregnancy or maternity leave within the meaning of Directive 92/85/EEC constitutes unlawful discrimination for the purpose of that Directive”.

The Adjudicator noted that in the present case “it has been established that the Complainant was pregnant for the entirety of her employment with the Respondent, including the investigation and disciplinary process. It is also accepted that the Respondent became aware of the Complainant’s pregnancy shortly after the commencement of her employment and throughout the process outlined above…..Having regard to the case-law cited above, I find that the Complainant had discharged the burden of proof in relation to establishing a prima facia case as set out in the Acts. Consequently, the Respondent bears the burden of proving, on “cogent and credible evidence”, that her dismissal was in not in any way related to her pregnancy”.

The Workplace Relations Commission concluded:

While it is the Respondent’s position that the dismissal occurred as a result of the Complainant’s misconduct, the evidence as presented does not credibly or cogently demonstrate that this was the sole reason for the dismissal. Having regard of the issues outlines above and the totality of the evidence presented at the hearing, I find that the Respondent has not discharged the burden imposed by the Acts.   Consequently, I find in favour of the Complainant and her application succeeds”

The Complainant was awarded 6 months salary for discriminatory dismissal.