The Employee worked in a sandwiches company and confirmed her pregnancy on the 14th of April 2009. She informed the Employer and gave him the medical certificate. In order to prepare the sandwiches the Employee had to lift buckets of ingredients up to 15kg and get boxes up to 20kg from the cold storage room. When she raised her concerns and asked for lighter work, the Employer stated that: “she wasn’t the first pregnant woman to work in the company” so he didn’t see why she was concerned.
The Employee asked for alternative work and if there was none available, asked for a certificate in order to go on health & safety leave. The Employer, however, refused to provide a cert. She gave her Employer permission to contact her doctor when she requested health & safety leave on the second occasion.
On the 28th of April the Employee was asked to attend a meeting; this was as a result of the Employee’s solicitor writing to the Employer. During that meeting the Employee was asked for a cert saying she was fit for work, which she provided on the 5th of May and returned to work. The recommendations contained in her return to work certificate had not been implemented by the Employer. The Employee was in receipt of the ‘pregnancy assessment form’ but only received a copy of the risk assessment on the 12th of May. The risk assessment was carried out without any consultation with the employee.
On the 18th of May the Employee put all her concerns in writing and again asked for a certificate to go on health & safety leave. At a meeting on the 26th of May the employer agreed to provide a cert for health & safety leave and asked that the employee collect it on the 30th of May. On the morning of the 30th she was contacted by the employer to say no cert would be provided as on further medical advice there was no danger.
The Employer identified the risks to the employee and stated there was no extreme temperatures and assistance could be given for any lifting required. He stated he could not justify completing the health & safety leave form. On the 15th of April the Employee insisted she no longer wanted to work. The Employer took this to be her resignation. At a further meeting the Employer asked the Employee if she wanted to resign and she said that she did not, but she wanted her working conditions changed. The Employer informed her that there was no full-time position available in the packing area but that she could do it part-time and the rest of the time she could continue with her normal duties.
In the mean time the employer got a risk assessment done and organised a meeting with the employee. The Employer agreed the new duties with the Employee and removed any of the lifting. The temperature of 12 degrees could not be changed so he needed the employee’s doctor to confirm she could not work in that temperature as according to the health & safety form it is not an ‘extreme’ temperature. He asked on numerous occasions for this confirmation, including a request to the Employees’ solicitor.
The Tribunal having heard the evidence in this matter and note that there is no onus on the employer when he is carrying out a risk assessment of the work station of the Employee, that such a risk assessment should be carried out with her full participation. It follows that in carrying out the risk assessment the Employer complied with the legal requirement. The Tribunal determines that the complaint was not well founded and overturns the Rights Commissioner Decision.
This case states the need for Employeers to consider that different producedures which may need to be put in place for when Employees confirm they are pregnant, in order comply with legal requirements, aswell as the importance of conducting a risk assesment.
P7/2010 Employee V Employer - Rights Commissioner Decision over turned by Tribunal in relation to Health and Safety Leave.
The appellant told the Tribunal she received a phone call on a bank holiday weekend in 2008 from the respondent, a community swimming pool was looking for someone urgently as a person had walked out. They wanted to open the pool for the full year and not just for the summer. The appellant was five months pregnant and was asked how, if there was an accident, she would save somebody. She told the respondent this was not an issue. Up to December 2008, she had made substantial progress with the Board of Management. She got a loan of lifeguards, bought safety equipment, signs and arranged for two lifeguard courses.
The appellant was told management had promised a girl who was in Australia the job. They asked the appellant if she was agreeable to a joint role. After two months it was discovered the other new employee was not up to the role and she took a pay cut. Around the 17th December 08, the appellant took her maternity leave.
On the 7th January 09, her child was born and she texted staff to inform them. Around the 3rd March 09, she received a phone call and was told the Board of Management had a meeting and had decided they no longer needed a manager. The appellant took it that she was dismissed over the phone. They had however, mentioned they might need a senior lifeguard. When she had not heard from the respondent she e-mailed. She received an e-mail from the respondent to say her position remained the same.
She contacted the respondent giving her intention to return to work. Her maternity leave expired on the 29th June 09. On 30th June 09 she received a registered letter from the respondent to inform her that she was dismissed. They stated that they were confirming the contents of phone conversation earlier in March. Nothing came of the lifeguard role.
In 2009, six staff were hired. On the 23rd April 09 after the phone call, she saw an advertisement in the Leinster Leader for pool staff. Jobs for aqua instructors, lifeguards, and swim teachers were advertised. All of these roles formed part of her former duties.
At the Board meeting on the 26th February 09, a plan was put in place to reduce costs. It was accepted the appellant would cost nothing while on maternity leave. A letter of dismissal was sent on the 30th June 09. They gave the appellant a month’s notice. A witness stated that directors have discussions on the phone all the time concerning the management of the pool. He states that there was no meeting called to discuss the appellants dismissal.
In the circumstances the Tribunal would set aside the Decision of the Rights Commissioner and award the appellant the amount of twenty weeks’ pay by way of compensation. A key learning point relates to the protection provided to pregnant Employees and also the risks involved in dismissing an Employee directly after a period of maternity leave.
P5/2010 Employee v Employer - Tribunal award Employee returning after maternity leave twenty weeks’ pay due to actions of Employer.