A female employee announces that she is pregnant. You may very well be happy for her – and congratulate her on the happy news. But the news can present you with significant challenges. Will she be healthy until close to delivery? Who will handle her responsibilities during her absence? Will you be able to defer some of her tasks? Or divide them up among other employees? Or will it be necessary to recruit a replacement? Will she return to employment after her maternity leave?
Employers regularly have to grapple with these questions. But sometimes you’ll also need to deal with performance and other contentious issues. What if you perceive the pregnant employee’s performance to be below the required standard? You have every right to address performance issues for any employee.
The law is clear. You cannot discriminate against a woman because she’s pregnant. If you do, you’re discriminating against her on the grounds of gender – gender is one of 9 grounds on which Ireland’s Employment Equality Acts 1998-2011 outlaw discrimination.
So – how can employers handle performance issues and more general employment issues with pregnant employees while at the same time avoiding falling foul of the law? Part of the answer to this question is to look at real examples of how not to do things.
A Limerick casino, as a result of a 2012 Employment Appeals Tribunal (EAT) ruling, had to pay €36,000 to a former employee whom it had dismissed during her pregnancy. She had worked for them as a croupier – a dealer. What’s not disputed is that she had received a written warning, which she signed, when the casino concluded that she was failing to stop a customer cheat at a type of poker. She claimed that it was the only warning that she received. She also claimed that she had received no contract of employment and that, regarding her tax, the general manager had simply said that he would “sort it out”. She claimed that this was an issue for her because “she needed a payslip to renew her visa”. (She was from Mauritius.) She also claimed that she received no “documentation as to the respondent’s procedures” and that, when she was dismissed, she was told, “to put her feet up at home”.
In response, the respondent said that there had been CCTV evidence to back up the written warning and that “the claimant had received several warnings both oral and written from her employer in relation to her conduct at her place of work”. However, the CCTV evidence had been overwritten after a period of time – as was the casino’s norm. The EAT’s ruling also makes no mention of written evidence of other written warnings.
The claimant’s case was that she had been dismissed because of her pregnancy. The EAT agreed – ruling that “the respondent’s procedures were defective and could be said to be crude” and “that the claimant’s dismissal was wholly or mainly due to her pregnancy”.
Leaving aside the EAT’s core conclusion, the casino did itself no favours:
- It failed to hold onto the CCTV evidence backing up its claim of the employee letting the customer cheat.
- It failed to provide the claimant with a contract.
- It failed to regularise her pay in a timely manner.
- It (seemingly) failed to document written warnings that it claims were issued.
- It (seemingly) failed to provide her with documentation about procedures.
- It failed to allow her to have a representative present with her at a disciplinary hearing.
If the casino had proper procedures in place, and if it had provided the employee with those procedures, and if it had been able to show that it had used those procedures, the award would have undoubtedly have been less – even if the EAT had still decided that the casino had dismissed the claimant because of her pregnancy.
Let’s look next at a case where another pregnant employee in a Dublin discount store made very serious complaints to the Equality Tribunal in December 2012 and May 2013. She claimed discrimination on the grounds of race, conditions of employment, promotion and training. She also complained of victimisation – culminating she said in her feeling forced to resign. That’s a serious list of indictments – but the Tribunal found in her favour on everything except for the training complaint. Where did the employer go so wrong?
- They told her to “take all ante-natal appointments outside work hours” – difficult when she was working 70 hours per week
- “Toilet breaks were discouraged”
- “She worked 11 (long) days in a row once while heavily pregnant”.
- They claimed that they could show her “time sheets of other managers that were pregnant and still were doing 60-80 hrs a week and worked till the last day”.
- They expected some employees to work that number of hours, not get paid for many of them, and to organise and pay for their own taxi home in the small hours of the morning.
- They contrasted her complaints with other pregnant employees who “nearly got their baby in the store, they finished in the afternoon and in the evening they were in labour”.
- They referred to her maternity leave as a “maternity holiday”.
- They said that they would increase her pay after her maternity leave and then failed to do so.
- They asked her to provide documentation backing up her claims and, when she did, they wrongly accused her of violating the Data Protection Act.
- They held a disciplinary hearing on March 5th, 2013 but there was no outcome until over 7 weeks later.
The (astonishing) list goes on but I’ll stop there in the interests of brevity. The financial outcome? The woman was awarded €33,000 “in compensation for the harassment, conditions of employment and promotion” and a further €22,000 “in compensation for the distress caused by victimisatiory [sic] dismissal”.
If you are found to have discriminated against a female employee because of her pregnancy, the size of the award is dependent on the employee’s salary. This means that the potential financial downside is greater for higher paid employees. This worked against an insurance company in May 2015 when the Equality Tribunal ruled that the company had “discriminated against the complainant on grounds of her gender by reason of her maternity leave”. The complainant was an HR specialist.
The penalty? €70,000.
The insurance company had made none of the 10 errors mentioned above in the case of the Dublin discount store.
What they had done though was:
- They failed to give the employee a performance review for the 2 years during which she left to go on maternity leave. In the first year, 2008, she had worked for 3 months. In the second year, she worked over 4 months.
- They pegged her performance for both years at “meets expectations” – even though, in each of the 2 years prior to her going on maternity leave, she had earned an “exceeds expectation” rating. It may be surprising to you that the system takes cognisance of a prior performance assessment. You may consider it to be irrelevant. But it is not. It does act as a guideline. Why? It is because maternity leave is fundamentally considered to be protected employment. The employer, in making decisions around performance and bonuses, should consider the employee to be at work.
- A colleague within the HR function was appointed as Interim HR Manager one week before the complainant’s scheduled return from her second maternity leave – a position that the complainant was interested in, had no chance to apply for, and for which the evaluation criteria were never clearly disclosed. Subsequently, that colleague was made HR Manager.
In the opinion of the investigating Equality Officer, the employer’s actions established what is referred to as a prima facie case of discrimination. This means that the complainant was considered to be providing sufficient evidence to back up their claim of discrimination. Under Irish law, this then shifted the onus of rebutting the claim onto the employer – something they were unable to do to the Equality Officer’s satisfaction.
His conclusion? With respect to the performance rating, the Equality Officer “concluded that the Complainant’s reduced performance rating while on maternity leave impacted adversely on her financial bonus.” With respect to the appointment of the complainant’s colleague to the two positions, the Equality Officer concluded that “on the basis of the evidence before me, I must draw the conclusion that the Complainant’s maternity leave influenced the Respondent’s decisions in relation to these appointments”.
Dealing with pregnant employees brings with it unique challenges – how to be fair while at the same time retaining your legitimate right to conduct your business. The better prepared and trained you and your team are – the lower the risk of you falling foul of legislation. If you have any questions about this area call Mary Cullen, Patrick Foley or Liam Barton on 056 770 1060 or email firstname.lastname@example.org.