Key Learnings
This Case is another caution to Employers that Employees on maternity leave and pregnant Employees are afforded considerable legal protection. Therefore, Organisations must ensure that their decisions take into consideration HR best practice in relation to protected leave. Such Employees must also receive their full entitlements including accrued annual leave and public holidays, with appropriate record keeping of same being retained by the Employer. Employees returning from maternity leave are entitled to return to the same terms and conditions of employment and where this is not practicable, the Employer must provide an Employee with suitable alternative work, with terms no less favourable than those of the previous job.
Background
The Complainant commenced work with the Respondent as a Cleaning Operative on the 1st October 2018 and went on maternity leave in November 2020, after which time she was not allowed to return to work. The Complainant made a complaint of discriminatory dismissal against the Respondent on the grounds of gender. The Complainant further complained that she did not receive holiday pay and public holiday pay due to her, did not receive her proper notice and was not furnished with a contract of employment.
Summary of Complainant’s Case
The Complainant commenced work with the Respondent as a Cleaning Operative on 1st October 2018 and remained in employment until 21st June 2021.
In November 2020 the Complainant went on Maternity Leave. She was not allowed to return to work after maternity leave and was initially told that there was no work for her to return to. Then she was told that her work prior to going on maternity leave was not up to standard. This was the first time that she had been made aware of this.
The Complainant was told that she would be paid outstanding money including holidays, week in hand etc. She never received these payments. When she received the letter informing her of her dismissal it advised that she was let go due to Covid. She was told that they would put this on the letter to make it easier for her to get social welfare.
The role the Complainant had previously worked in was still in place in June 2021, and there were two Employees doing the work that she used to do. Prior to going on maternity leave, the Complainant was working alone, in a cleaning role that always had two people employed to cover it.
While heavily pregnant, the Complainant found aspects of the job hard to do by herself, such as heavy lifting etc. She was never told that there was a problem with her work, until after she asked to come back at the end of maternity leave. It was at that stage that she was told her work was not up to standard. She was given no fair hearing, no right of reply, no chance to appeal and was denied natural justice. Since then, once again two people were employed to cover the cleaning contract that she was doing by herself, while heavily pregnant. The Complainant spoke to a representative of the Company in whose premises she had been cleaning and was told no complaint had been made about her work.
The Complainant was not paid for holidays which accrued while on maternity leave. When she was told that she was not being allowed to return to work after having maternity leave, she was told that she would be paid outstanding holidays. She did not receive this payment and did not receive any payment for public holidays which accrued during her maternity leave. The Complainant did not get paid any notice nor did she receive any terms of employment.
Summary of Respondent’s Case
The Respondent was not familiar with the details regarding holidays etc as the records were previously kept by his former partner. During the Complainant’s period of maternity leave the Respondent and his partner were going through a separation and the Respondent did not have access to the information including details of holidays and contract of employment. During this same period he lost five of the factories with whom he had a contract for cleaning, leaving only one. The person employed to cover for the Complainant while on maternity leave was subsequently retained by that factory meaning there was not position for the Complainant to return to. At no stage were two people employed to carry out the work of the Complainant. The discussions regarding performance had been with his partner and the Respondent could not provide any details in that regard.
Findings and Conclusions
It was found to be clear that the Respondent breached the Maternity Protection Act Section 26 and 27, by failing to allow the Complainant to return to the same terms and conditions of employment following maternity leave. The Complainant was therefore discriminatorily dismissed on the grounds of gender. In light of all the circumstance of this case an award of compensation which is fair and equitable was measured at €7,000, being the equivalent of 26 weeks wages.
The Complainant quantified her untaken holidays as being 7 days. The Respondent was unable to provide any information in relation to this complaint and was unable to demonstrate that the leave had been granted. This complaint was therefore found to be well-founded.
In relation to the non-payment of notice – the Complainant was entitled to 2 weeks’ pay in lieu of notice and this was contravened by the Respondent. The Complainant alleged that she was not paid for 1 week due to her as a ‘week in hand’. The Respondent was unable to demonstrate that this money had been paid and therefore this complaint is well-founded.
The Complainant alleged that she was not paid for public holidays which occurred during her maternity leave. The Respondent was unable to provide any information in relation to this complaint and unable to demonstrate that the leave had been granted. The complaint is therefore well-founded. The number of public holidays which fell within the period of maternity leave was quantified as being 4.
The Complainant alleged that, while she signed a contract of employment, no copy of this was ever provided to her. The Respondent was unable to demonstrate that the terms of her employment had been given to her. This complaint is therefore well-founded.
Decision
The Complainant was discriminatorily dismissed, and the Respondent is ordered to pay her the sum of €7,000. A further sum of €1,567.50 was awarded in respect of the further breaches noted.