In the fourth instalment of our 12 Days of Christmas series, we look at the Labour Court’s decision in G4S Secure Solutions (Ireland) Ltd v Kelly EDA1919 from earlier this year.
The cost of discriminating against those who exercise their right to maternity leave
The Labour Court awarded the complainant €51,168 following an appeal hearing in May. It was satisfied that the employer had failed to offer the complainant suitable alternative employment after her maternity leave and that she had been discriminatorily dismissed. The award was the maximum available and a sizeable increase on the sum of €11,602.50 that the Workplace Relations Commission (“WRC”) had originally ordered the employer to pay. The Labour Court said that compensation for discrimination must be “proportionate, effective and dissuasive”. A failure to comply with maternity rights can have costly repercussions for an employer.
Before taking maternity leave, the complainant had a permanent employment contract and worked as a receptionist at the premises of one of her employer’s clients. When her maternity leave came to an end, the complainant’s employer told her that she would not go back to her previous role. This was because the client had asked her employer that she did not return.
Faced with this situation, the employer should have offered the complainant suitable alternative work (i.e. a job that is suitable from the employee’s standpoint). This is the requirement under the Maternity Protection Acts 1994 and 2004. Instead, the employer offered her a fixed-term contract in a location which would have meant a fourfold increase in her commuting time. The offer fell short of meeting the employer’s obligation and put the complainant in a less favourable position.
The complainant did not accept the offer of alternative work, her employer stopped paying her and she asked for her P45. The Labour Court found that, in the circumstances, there had been a dismissal.
Key Points for Employers
By awarding the maximum possible compensation, the Labour Court has shown that the courts are prepared to impose significant penalties on employers who unlawfully discriminate. As ever, the advice is that employers should train their managers so that they are aware of their obligations under the Maternity Protection Acts 1994 and 2004 and the Employment Equality Acts 1998 to 2015. Employers who become blasé about observing the rights granted by this legislation risk being challenged by their employees in the WRC.
This case also reminds us that an employer is not relieved of its obligations towards an employee simply because a client wants to dispense of their services. Employers who supply employees to work for third parties should bear this in mind when negotiating the terms of their commercial contracts with those clients.
To receive your ’12 Days of Christmas’ bulletin, sign up using our Preference Manager tool here.