Discrimination occurs when one employee is treated less favourably than another has been treated, or is treated, or would have be treated which is based on gender.

This area of the law is governed by the Equality Acts which prohibits discrimination based on gender in S.6 of the Equality Act 1998(as amended).

S. 6 of the Unfair Dismissals Act(as amended) states that the dismissal of an employee will be considered an unfair dismissal if it results from the employee’s pregnancy, presentation at ante-natal classes, the birth or breastfeeding etc.

What generally arises when a problem of this nature arises in an employee’s life, is that the employee notifies the employer of the pregnancy, and thereafter notices an employer attitude change. Subsequent to this in the timeline of events an employee sustains some form of adverse treatment, or discrimination, or a dismissal arises and the employee justifiably feels aggrieved and relies upon the relevant legislation to seek a legal remedy. Sometimes employers set about making such an employee redundant before getting legal advice.  

What we can take from the caselaw and legislation is that in circumstances where an employee is dismissed, and this employee is pregnant or on maternity leave, the employer must show that there were exceptional grounds for the dismissal, and these reasons were not related to the pregnancy etc. The employer should set out the reasons for the dismissal in writing. The onus on the employer in these matters is clear and if a case comes to a hearing, all the facts will be examined to endeavour to establish the truth of what happened.

If you’ve been dismissed due to Pregnancy

If an employee who is pregnant is dismissed by an employer, there are many avenues of legal redress options available to this employee.

Pregnancy and indeed the maternity leave timeframe are protected time periods for employees in employment law.

Any employee discriminated against, treated unfairly or adversely, such as being dismissed during this period has legal right options available to them to activate.

Many times we have seenthat once an employee notifies an employer of the pregnancy, an attitude shift occurs, and the employment relationship becomes unnecessarily fraught and difficulties arise.

If an employee is discriminated against based on their gender, they can activate their legal rights under the equality legislation which prohibits discrimination at work. If such an employee is dismissed they may have a right of recourse under the Equality law legislation /  Unfair Dismissal acts or Maternity Protection Acts.

The Pregnancy Council Directive 92/85/EEC at article 10 requires employers to send such an employee in writing the reasons for any dismissal, setting out the ‘’duly substantiated grounds in writing’’. This is an onerous duty. An employer really needs to have very persuasive evidence that the employee who is pregnant or on maternity leave was dismissed for matters wholly unrelated to the pregnancy which is also justified.

The fact that the employee was pregnant, who was dismissed, will of itself shift the burden of proof onto the employer to prove the dismissal of the pregnant employee was not motivated or connected with the pregnancy itself.

This is an onerous duty for employers, and pregnant employees enjoy special protection in the eyes of the law.

If an employer argues the employee was simply made redundant, then it must be proven this was a genuine redundancy only. It must adhere to one of the set number of reasons whereby redundancy is permitted by legislation, and it must be unrelated to the employee’s pregnancy. This is not an easy task in a case taken of this nature, as the burden of proof is on the employer who is explaining from the start, and suspicions will likely be immediately raised if such an employee is dismissed.

An employee who is pregnant evidently can be dismissed, as it is the employer who makes this decision, but it would he wholly imprudent in our view for an employer to do this, and such an employee has a myriad of legal rights they can avail of to challenge the decision.

The employee can potentially rely upon the Maternity Protection Acts, Equality Acts and/or Unfair Dismissals Acts.

If an employer dismisses such an employee citing reason of redundancy, then it is the employer who must prove a genuine redundancy arose, which was unrelated to the pregnancy.

There are substantial legal protections for such an employee, probably more so than any other employee.

The employee on maternity leave period enjoys similar special protection to that of the pregnancy leave timeframe.

Employers should not attempt to dismiss an employee while on Maternity Leave and in S.23 of the Maternity Leave Act it states:

Each of the following shall be void:

(a) any purported termination of an employee’s employment while the employee is absent from work on protective leave;

(b) any purported termination of an employee’s employment during a period of natal care absence;

(b ) any purported termination of an employee’s employment during a period of absence from work to attend ante-natal classes;

(bbb) any purported termination of an employee’s employment during a period of absence from work for breastfeeding:

(c) any notice of termination of an employee’s employment given while the employee is absent from work on protective leave and expiring subsequent to such a period of absence;

(d) any notice of termination of an employee’s employment given during a period of natal care absence and expiring subsequent to such a period;

(dd) any notice of termination of an employee’s employment given during a period of absence from work to attend ante-natal classes in accordance with section 15A and expiring subsequent to such a period;

(ddd) any notice of termination of an employee’s employment given during a period of absence from work for breastfeeding in accordance with section 15B and expiring subsequent to such a period; 

(e) any purported suspension from an employee’s employment imposed while the employee is absent from work on protective leave, during a period of natal care absence or during a period of absence from work to attend ante-natal classes in accordance with section 15A or for breastfeeding.

If an employer attempts to or terminates a pregnant employee’s employment, the employee should seek to appeal the decision.

If an employee is near to making a decision to voluntarily resign due to unfair employer conduct, this employee should firstly activate all internal Grievance Procedures prior to leaving the employment, or any subsequent case they take may be in jeopardy.

Complaints regarding gender discrimination or gender based unfair dismissal are made to the Workplace Relations Commission who have a number of dispute resolution options available.

The Workplace Relations Complaint Form needs to be completed by the employee applicant, and submitted to the Workplace Relations Commission which can be done online or via post.

If a pregnant employee is dismissed and takes a case under the Unfair Dismissal Acts, there are three remedy options available to this employee if they win their case, which includes Re-instatement & Re-engagement:

(a)  Re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or

(b) Re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or

This evidently should not occur and such an employee has a right to equality under the Equality Law legislation, and should not be discriminated against based on gender or having an illness which may amount to a disability.

Such an employee may have right of recourse also under the Unfair Dismissal Acts and Maternity Protection Acts also.

If this occurs, the employee has substantial legal protection options to activate.

Discrimination relation to pregnancy which relates to gender is prohibited in the workplace and contrary to S.6 of Section 6 of the Equality Act 1998 which states :

‘’For the purposes of this Act, discrimination shall be taken to occur where, on any of the grounds in subsection (2) (in this Act referred to as “the discriminatory grounds”), one person is treated less favourably than another is, has been or would be treated’’. 

The ground is that the female worker is pregnant. 

This should not happen.

Such an employee will have a legal right to avail of under the Equality Acts and there is no service provision requirement for an employee under the Equality Law legislation.

Such an employee may also have a legal remedy option available to them under the Unfair Dismissals Acts.

S. 6 of the Unfair Dismissal Act 1977 states that the dismissal of an employee is considered an unfair dismissal if it relates to the pregnancy of the employee.

Discriminating against an employee based on their gender is covered by the Equality Acts.

The following is an example of the redress which can be granted to the successful applicant in a case for discrimination under the Equality Acts.

The applicant can be awarded remuneration of an amount equal to the greatest of:

(i) 104 times the amount of that remuneration, determined on a weekly basis,

(ii) 104 times the amount, determined on a weekly basis, which the complainant would have received at that date but for the act of discrimination or victimisation concerned, or

(iii) € 40,000,

or

(b) in any other case, € 13,000. 

In pregnancy related gender based dismissal cases taken under the Equality Law legislation, it is the employers duty to disprove the dismissal related to the pregnancy of the employee.

This can be an onerous duty for employers.

Once an employee who is pregnant is dismissed, the onus of proof shifts onto to the employer and if there is a sham redundancy reason offered by the employer, the Adjudication Case officer will assess the facts, to examine if a genuine redundancy situation arose, or if the dismissal was simply but truthfully connected to the pregnancy itself of the employee. 

Yes, in our view such an employee should notify their employer of the pregnancy.  

Article 2 of the Directive 92/885/EEC states that a pregnant worker shall mean a pregnant worker who informs her employer of her condition, in accordance with national legislation and/or national practice.

It is arguable, however, in Ireland that our legislation did not follow this requirement by including a provision whereby such an employee must notify the employer of the pregnancy before being able to rely on the Equality Acts.

The Safety Health and Welfare at Work Act 2005 and the regulations of 2007 require employers to carry our Risks Assessments to assess the risk to safety and health of an employee.

This includes an employee who is pregnant, or breastfeeding and an assessment must be conducted to identify any employer activity that exposes that employee to a risk to their health or well-being.

Cleary & Co. Solicitors, Litigation Law Firm 

Kieran Cleary and Roger Cleary Employment Law Solicitors can help with questions you may have regarding employment law matters and our numbers are (01) 546 1121 or  (052) 612 1999 or our email address is info@clearysolicitors.com

Please be advised that the above-mentioned material is intended as an overview and as a broad out-line of the topic discussed. It should not be considered as complete and comprehensive legal advice, nor act as an appropriate substitute.
Due care has been taken in the publication of this article and we do not accept legal liability as a result of reliance on any material covered in the above article.