Maternity Leave Discrimination
Have you ever been discriminated against because of your gender – namely for being a woman? More importantly, has such discrimination ever been in connection with your pregnancy? Have you ever had the fear if you go out on maternity leave that when you return to work that your ‘old’ job will be given to someone else? Have you ever feared a backlash and have been victimised for making a complaint to the Equality Tribunal? If any of this sounds familiar then you might find this blog post of interest to you.
A recent Equality Tribunal case found in favour of a woman who was discriminated against in connection with her gender and was victimised.
The complainant got a contract of employment in March 2008 and her job title was a Montessori teacher. The complainant said that she learned she was pregnant in May 2009 and that her baby was due on the 7th of January 2010. She informed her manager Ms. A. initially and then the respondent when she came to the crèche. She said that she wanted to give her as much notice as possible. At first everything was alright and the respondent congratulated and offered her maternity clothes and a baby basket. Shortly afterwards the complainant noticed a distinct deterioration in the working relationship. The complainant was out sick in July 2009 with fatigue and when she returned she was not asked if she had recovered. The complainant said that the respondent was very cool and hostile towards her and did not engage her in conversation and just said “hi.” The complainant said that she felt intimidated by the respondent. The complainant suffered a condition during her pregnancy which necessitated attendance at a physiotherapist specialising in pregnancy related conditions in the hospital. The complainant was of the view that the respondent begrudged her the time off to attend these appointments and also her anti-natal appointments. The baby was born three weeks early on the 16th of December 2009. The complainant said that while individual staff members visited her and brought presents for the baby she did not hear from the respondent or the manager.
On the 18th of May 2010 the complainant sent a letter to the respondent stating that she was returning to work on the 5th of July 2010. The complainant also met with the respondent and the manager on the 18th of May. There is a dispute over whether the complainant requested part-time work or whether the respondent offered her part-time work at that meeting. The Tribunal was satisfied from the evidence that an enquiry about part-time work was made by the complainant at the meeting and it was agreed that the respondent would come back to her about it. The Tribunal was satisfied that it was merely an enquiry and that the complainant expected the respondent to revert to her with options before any decision was made about part-time work. However before the respondent could revert back – the complainant had changed her mind and told the manager in or about the 25th of May 2010 that she wished to return to work on a fulltime basis and to the position she held prior to her maternity leave.
The complainant returned to work on the 5th of July 2010. On returning to work the complainant was placed in the toddler room even though she had expected to return to the Montessori room and she was given no notice of this change. The respondent submitted that the complainant’s position had been offered to Ms. B, the person who replaced her while on maternity leave, and she had accepted the position and it could not be changed. She said that she was anxious to give Ms. B a job because she was unemployed. The respondent also said that Ms. B was more qualified than the complainant. On returning to work there was a dispute between the respondent and the complainant as to whether she was qualified enough. The complainant said that she became very upset at the fact that she was not getting her job back and the respondent asked her if she wanted to take the rest of the week off. The complainant took the rest of that day and the following day off. When she returned to work she felt that the atmosphere was icy and that she was not wanted there. The following week the complainant was certified as suffering from work related stress and unfit for work. The complainant remained on sick leave until she was certified fit to return to work at the end of May 2011. Between May and September correspondence went between the complainant and the respondent about her return to work. The complainant returned to work on the 12th of September 2011 but she disputed the job description because she was not returning to her Montessori position. The complainant said that the attitude towards her was not good and on Friday the 23 September 2011 she broke down crying. She went to her doctor during lunch and she got a sick certificate. She gave the cert to her manager and said that she would be on sick leave the following week because of the bullying. The complainant remained on sick leave until September 2012 when she resigned from the employment.
Decision of Equality Tribunal
Gender Status
Given that the complainant was placed in the toddler room the Tribunal had to consider and examine the evidence to establish if the position in the toddler room was an equivalent post and on terms and conditions that are no less favourable to her than the post that the complainant occupied in the Montessori room. The complainant was a qualified Montessori teacher and taught children in the 3 to 4 age bracket. The position in the toddler room for which she had no training involved dealing with much younger children and she was no longer using her skill as a Montessori teacher. The Tribunal was not satisfied that the complainant was offered an equivalent post in terms of her qualifications experience and status within the crèche.
The respondent stated that she could not return the complainant to the Montessori room because she had already offered the position to Ms. B. The decision to offer the post to Ms. B was made while the complainant was still on maternity leave and without consultation with her. The Tribunal could not accept that the respondent could not return the complainant to the position in the Montessori room which she occupied before she went on maternity leave because she had given a contract of employment to Ms. B. The complainant had a written contract of employment which stated her position was a Montessori teacher. The respondent stated that Ms. B. was more qualified than the complainant but the Tribunal noted that the complainant had until the 30th of September 2012 to update her qualification with the ECCE programme.
The Tribunal held that the complainant had established a prima facie case of discriminatory treatment on the gender ground and that the respondent had failed to rebut the inference of discrimination.
Victimisation
The complainant referred a complaint to the Tribunal on the 19th of May 2010 alleging discriminatory treatment in relation to her conditions of employment. It is clear that the respondent did not have a copy of the complaint form at the return to work meeting of the 18th of May 2010, however she did have a copy of the complaint on the 11th of June when she wrote to the complainant offering her part-time work. The complainant notified the manager in or about the 25th of May that she was no longer interested in part-time work because her personal circumstances had changed.
The complainant submitted that she was victimised following the respondent finding out in or around the 25th of May 2010 that she had submitted a complaint to the Equality Tribunal. The complainant submitted that the respondent decided to ‘punish’ her by insisting that there was a concluded agreement in relation to her working part-time and when the complainant challenged this she was given a full-time post in the toddler room and she was not given her job back in the Montessori room.
The Tribunal were satisfied that there was no concluded agreement between the parties in relation to part-time work at the meeting of the 18th of May. The Tribunal accepted that the complainant made merely an enquiry about the matter and the respondent agreed to look in to it and come back to the complainant.
The Tribunal was satisfied that there was a link between the receipt of the complaint of discrimination and the decision not to return the complainant to her position in the Montessori room. The Tribunal found that this treatment constituted adverse treatment of the complainant within the meaning of Section 74(2) Employment Equality Acts 1998-2011. That section relates to victimisation. The Tribunal was satisfied that the referral of the case by the complainant influenced the decision not to allow her back as Montessori teacher following her return from maternity leave and to move her to the toddler room. Hence, the Tribunal found that the complainant had established that she was subject to adverse treatment in accordance with Section 74.
Constructive dismissal
The complainant returned to work after her maternity leave on the 5th of July. The complainant submitted that she suffered stress due to the atmosphere in the crèche following the failure of the respondent to sort out her position in the Montessori room. The complainant was certified by her GP as suffering from work related stress and she was absent on sick leave from the 12th of July 2010 until the 14th of June 2011 and she returned to work on the 12th of September 2011. The complainant went on sick leave again on the 26th of September 2011 and she submitted medical certificates to the respondent up until the hearing of this case in September 2012.
There are two tests that set out to establish constructive dismissal:
- “entitlement to terminate the contract”
- “reasonableness”
The Tribunal was satisfied that the complainant did not resign from the employment when she returned from maternity leave or in December 2010 when she referred the complaint of discriminatory dismissal. She remained in an employment relationship with the respondent up until September 2012. Thus, the complainant couldn’t satisfy the test at (i) above because she did not resign following her return from maternity leave or in December 2010 when she referred the complaint. The second test was the “reasonableness” test. At the time the complainant resigned in September 2012 the complainant was on sick leave from the employment for over a year and maintained the employment relationship by sending in medical certificates and no further incidents of discriminatory treatment occurred which would have justified her decision to resign at that time. The Tribunal held that complainant had not satisfied the reasonableness test. Thus, the Tribunal concluded that the complainant has not established a prima facie case of constructive dismissal.
Timeline of Events
March 2008 Complainant commenced work
May 2009 Complainant learned pregnant
July 2009 Out of work sick
December 2009 Complainant baby born
18th May 2011 Letter from complainant to respondent stating she was returning to work.
18th May 2010 Meeting between complainant, manager, and respondent.
19th May 2010 Complainant submitted complaint to Equality Tribunal
25th May 2010 Complainant told respondent that she wished to return to work on a full-time basis.
Respondent would have become aware of complaint to Equality Tribunal.
5th July 2010 Complainant returned to work
July 2010 – May 2011 Complainant on certified sick leave
May 2011 – Sept 2011 Complainant and respondent negotiated her return to wrok
12th Sept 2011 Complainant returned to work
23rd Sept 2011 Complainant went out on certified sick leave
Sept 2011 until Sept 2012 Complainant was out on certified sick leave
Sept 2012 Complainant resigned from employment
What does EU law say?
Pregnancy is a uniquely female condition and where a woman experiences unfavourable treatment on grounds of pregnancy such treatment constitutes direct discrimination on the grounds of gender within the meaning of the Equal Treatment Directives Council Directive 2002/73/EC. The Directive states:
“A woman on maternity leave shall be entitled, after the end of her period of maternity leave, to return to her job or to an equivalent post on terms and conditions which are no less favourable to her and to benefit from any improvement in working conditions to which she would be entitled during her absence.”
The European Court of Justice in Brown v Rentokil Case C-394/96 held that the entire period of pregnancy and maternity leave is a specially protected period during which both the EU Equal Treatment Directive 76/207 and the EU Pregnancy Directive EU Directive 92/85 prohibits dismissal on the grounds of pregnancy. Section 85A of the Employment Equality Acts 1998-2011 sets out the burden of proof necessary in claims of discrimination. It provides “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.”
It requires the complainant to establish, in the first instance, a prima facie case of discrimination, that is, facts from which it can be established that she suffered discriminatory treatment on the gender in relation to her conditions of employment for reasons connected with her pregnancy. It is only when she has discharged this burden to the satisfaction of an Equality Officer that the burden shifts to the respondent to rebut the prima facie case of discrimination raised.
Hence, employers need to be aware that unfavourable treatment on grounds of pregnancy won’t be tolerated given the laws that are currently in place both nationally and in the EU.
Conclusion
The Equality Tribunal found that the respondent had discriminated against the complainant on the gender ground for reasons connected to her pregnancy and for the failure to allow her to return to the position which she held immediately before her maternity leave. The Tribunal also held that the complainant was victimised in terms of section 74(2) of the Acts. The Tribunal held that the complainant had failed to establish discriminatory treatment on the family status ground and also failed to establish harassment in terms of section 14A of the Acts.
The Tribunal awarded her €5,000 for the discriminatory treatment and €7,000 for the victimisation. Hence, the respondent was ordered to pay the complainant €12,000 in compensation. This figure represented compensation for the infringement of the complainant rights under equality legislation in relation to discrimination and victimisation and did not include any element relating to remuneration, and therefore it was not taxable.
