WRC Rules in Favour of Employer in Case to Provide a Safe Role for Pregnant Employee
Background
In March 2023, a staff nurse informed the employer of her pregnancy. After a risk assessment, she was placed on paid health and safety leave, which ended in early April. The employer then moved her to unpaid leave, paying €154 per week, citing the unavailability of a safe role. A planned transfer to a safer ward was cancelled just before it was due to start. Despite repeated requests for alternative duties or part-time work, no role was offered until mid-May, and she began the new position in late June, following a grievance. The nurse claimed this caused financial and emotional distress.
Complainant’s View
The employee alleged discrimination based on gender and family status, arguing the employer failed to provide a safe and adequately paid role during her pregnancy. She claimed the employer could have offered alternative duties, such as auditing or rostering, and noted that other pregnant staff had been accommodated. While she accepted the initial risk assessment, she questioned the employer’s overall efforts and rejected the outcome of her grievance.
Respondent’s View
The employer denied any discrimination, arguing the complainant had not shown evidence of less favourable treatment. The employer explained that safety concerns with certain clients led to the health and safety leave. Due to the lack of safe units, the complainant could not be reassigned until May. The employer also stated that it could not create new administrative roles and that the complainant declined a community-based role due to transport issues.
Findings and Conclusions
The Adjudicator found no prima facie case of discrimination. The complainant did not identify a valid comparator, and the employer’s actions were in line with legal obligations under health and safety and maternity protection laws. The Adjudicator also ruled that the employee’s salary was irrelevant to the discrimination claim.
Decision
The complaint was dismissed, with the Adjudicator finding that the employer had acted lawfully and without discrimination.
Recommendations
- Proactive Risk Assessment and Accommodation: Employers must conduct thorough, ongoing risk assessments for pregnant employees and, if risks are identified, actively seek to adjust working conditions or offer suitable alternative duties. Unpaid leave should be a last resort after all avenues for a safe, paid role have been exhausted.
- Documentation of Accommodation Efforts: Maintain clear and comprehensive records of all attempts to find suitable alternative work or adjust duties for pregnant employees. This includes internal communications, offers of roles (with reasons for refusal, if applicable), and details of cancelled transfers.
- Understanding Health and Safety Leave Obligations: Employers are typically required to pay the first 21 days of health and safety leave. While Health and Safety Benefit may be available from the Department of Social Protection thereafter, employers should be clear on their initial remuneration obligations.
- Clear Communication and Grievance Procedures: Foster an environment of open communication with pregnant employees. Ensure that grievance procedures are well-defined, accessible, and handled efficiently, providing clear explanations for decisions and demonstrating a commitment to addressing concerns fairly.