This week we look at a recent Labour Court case in which the Court overturned the previous decision of the Workplace Relations Commission (WRC) regarding the alleged dismissal of a pregnant worker during her maternity leave. Our Adrian Twomey highlights the key points to note in the case of Astra Leisure and Ultra Fresh Services Limited v Grodzicka, EDA2322 (2 May 2023).
The employee, Ms Svetlana Grodzicka, commenced employment at Astra Leisure in November 2017. She worked a 40-hour week up to January 2020 and was paid €11 per hour at that time. Her hours of work were reduced in January 2020 by agreement between the parties as she had found other part-time work teaching music at a music school.
Ms Grodzicka went on maternity leave on 2 March 2020. She gave evidence to the Labour Court that she later checked her online Revenue account and found that her employment had apparently been terminated on 11 March 2020. She sent a text message to her manager on 1 April of that year seeking clarification and he apparently confirmed that her employment had ceased.
After having her baby, Ms Grodzicka exchanged further communications with the company and was apparently informed that it was expected that the company would be "sold or closed" due to the impact of the COVID-19 pandemic. Nonetheless, the Labour Court was informed that Ms Grodzicka was the only employee who was dismissed at the time.
The employee submitted a number of complaints to the WRC over the months that followed. Her primary claim was that she had been dismissed in circumstances amounting to discrimination in breach of the Employment Equality Act 1998 (as amended). The WRC heard her complaints on 18 January and 22 February 2022. Ms Grodzicka had, in the meantime, commenced alternative employment as a part-time Medical Receptionist in a GP's practice. Her role at the music school had ceased in March 2020 due to the impact of the pandemic.
At the WRC hearing, the employer contended that Ms Grodzicka had resigned in February 2020 in circumstances where she had sought time off during the week to enable her to work at the music school. The employer stated that she could not be facilitated with alternative working hours at weekends as the weekend staff were unable to work mid-week hours. The employee disputed the contention that she had resigned.
Having heard evidence from both sides, the WRC Adjudication Officer concluded (on 11 July 2022) that:
"In relation to the evidence of the complainant and the respondent principal, I am satisfied that both witnesses gave honest and credible evidence in relation to their own individual understanding as to the situation pertaining at the time and having investigated the complaint as submitted, it is my role to decide if a dismissal occurred and if it did, was it for discriminatory reasons as a result of the complainant’s absence on maternity leave.
In conclusion, having considered the submissions and evidence of the parties, as well as the additional documentation submitted, I find on balance that the complainant resigned from her employment following the difficulties around the shift changes to facilitate the music teaching job. As the claimant was not dismissed, I find her claim for discriminatory dismissal on the basis of gender and family status is not well founded."
The Complainant appealed the WRC's decision (ADJ-00029417) to the Labour Court on 2 August 2022 and her appeal was heard on 13 April 2023. The employer did not attend at the Labour Court hearing and made no written submission to the Court. It appears from the decision of the Court that the employer had ceased trading by that point in time. The Court was, therefore, left in the position of having to make a finding based exclusively on the evidence and submissions of the employee. For that reason, it concluded that - contrary to the finding of the WRC - Ms Grodzicka had been dismissed while pregnant and on maternity leave. The Court then went on to consider the law on such dismissals, stating:
"In the case of Croc’s Hair and Beauty v Helen Ahern, ADE/16/58, this Court set out at some length its understanding of the legal protections for pregnant women. It is not necessary to re-state here the full text of the Court’s Determination in that case. It is sufficient to summarise this by referring to the fact that the then ECJ recognised in the case of Dekker v. Stichting Vormingscentrum voor Jonge Volwassen (VJV-Centrum), C177/88 (1990) EUECJ R177/88, that, as pregnancy is a uniquely female condition, any less favourable treatment on grounds of pregnancy constitutes direct discrimination on grounds of gender.
This principle has been copper fastened by the recognition of equality on gender grounds in the Charter of Fundamental Rights of the European Union which was, in turn, incorporated into the Lisbon Treaty. The jurisprudential principle is set out in Directive 2006/54, which provides that any less favourable treatment of a woman related to pregnancy or to maternity leave constitutes unlawful discrimination.
In drawing on these sources and on relevant case law, this Court in the Croc’s case observed that the special protection afforded to women from the commencement of their pregnancy until the end of their maternity leave is to be regarded as a fundamental right and that where a pregnant woman is treated adversely because of her condition during this period, the employer bears the burden of proving, on cogent and credible evidence, that such treatment was in no sense related to her pregnancy.
The failure of the Respondent to put any arguments to the Court in order to discharge this burden leads the Court, inevitably, to conclude that the Respondent discriminated against the Complainant on the ground of gender, in accordance with S. 2A of the Acts."
The Court noted that the Complainant had worked an average of 15 hours per week and been paid €11 per hour in the period leading up to her dismissal. This meant that her average gross wage was €165 per week. Pointing out that the dismissal of a woman due to pregnancy or maternity leave was "among the most egregious breaches of employment law", the Court awarded Ms Grodzicka the maximum permitted amount of compensation (104 weeks pay or €17,160).
The case of Ms Grodzicka highlights a number issues:
It is extremely dangerous, from a legal perspective, for employers to dismiss employees who are pregnant or on maternity leave.
When employees resign during pregnancy or maternity leave, employers should, if possible, ensure that there is a paper trail documenting any such resignations.
It is essential for parties who wish to succeed in cases to attend, make submissions and give evidence.
Despite eventually winning her case and being awarded the maximum possible compensation, the entire process took almost three years. Ms Grodzicka, having been represented by solicitors and barristers at both hearings, will presumably have incurred significant legal costs. As the legislation does not permit the WRC or Labour Court to make awards of costs, Ms Grodzicka's eventual win is unlikely to result in her having benefitted from a significant windfall.
Given that the employer appears to have ceased trading, Ms Grodzicka may still have a long road ahead of her in terms of actually enforcing the award made by the Court.
Employers who require advice in relation to employment law issues or who need representation before the WRC or Labour Court can contact our Adrian Twomey.