There is considerable strength in legal protections for a pregnant employee who was dismissed by her employer.
The EEC Directive 92/85 set out establishing a European wide framework giving basic rights to individuals before and after pregnancy in the workplace.
Article 10 of this Directive laid out a prohibition of dismissal in order to guarantee workers rights. It directed that Member States take steps to protect such workers.
Pregnant workers enjoy special protection in law from adverse treatment at work from the start of their pregnancy to the end of their maternity leave.
If an employer does end the employment of a pregnant employee, they must prove the dismissal reason has nothing to do with the pregnancy itself.
The protection in this regard is considered a fundamental right in the legal order of rights.
Pregnancy Related Discrimination
The prohibition of discrimination regarding pregnant workers is laid out in Section 6 of the Equality Act 1998:
‘’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.
Burden of Proof
The burden of proof in pregnancy related dismissal cases under the Equality Acts is on the applicant worker:
‘’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 burden of proof of a pregnant worker related discrimination case can be see in Bolger, Bruton, and Kimber in Employment Equality Law when it states:
The case law on burden of proof in cases of alleged pregnancy dismissal has developed in a singular manner due to the particular provisions of the Equal Treatment and Pregnancy Directives.
It is now well established that the existence of the pregnancy itself is sufficient to shift the burden of proof to the employer to prove that a dismissal of a pregnant employee was not on grounds of the pregnancy.
(Ref to the Trailer Care Holdings case EDA128) In other words the rules of burden of proof have been moulded in a manner to take specific account of the jurisprudence on pregnancy.
This means in effect that purely by reason of the pregnancy existing, the burden of proof shifts to the employer to prove on the back foot that the dismissal was not related to the pregnancy whatsoever. This is very important and strengthens the employees hand.
In the above-mentioned pregnancy directive it states that:
If a worker, within the meaning of Article 2, is dismissed during the period referred to in point 1, the employer must cite duly substantiated grounds for her dismissal in writing.
What happens sometimes in cases of this nature is that an employer will make the employee redundant during the before or after time regarding the birth. The employer may argue the redundancy was a genuine business economic need.
A question may arise then did the employer know the worker was pregnant before making the decision regarding redundancy.
The employer is obligated to prove that the redundancy was not related to pregnancy. The employer must be able to prove there is no link between the two. This is not an easy task for a employer to prove.
Pregnant workers enjoy special protection and this is taken seriously.
Legal Action Time Limit
Under the Equality Act for a pregnancy related dismissal there is a strict 6 month timeframe in which to take legal action.
A claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of the occurrence or, as the case may require, the most recent occurrence of the act of discrimination or victimisation to which the case relates.
Types of Redress which can be Ordered:
There are various types of redress which can be ordered, but here is a monetary example:
The maximum amount which may be ordered by the Director General of the Workplace Relations Commission by way of compensation
( a ) in any case where the complainant was in receipt of remuneration at the date of the reference of the case, or if it was earlier, the date of dismissal, 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,
( b ) in any other case, €13,000.
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