Employers seeking temporary cover for absent employees should take note of a recent decision of the Equality Tribunal. In short, withdrawing an offer of temporary employment, because the prospective employee will take maternity leave during the period of employment, has been ruled to be discriminatory.
In this case the prospective employee successfully interviewed for a temporary position with the company who required cover for another employee who was on maternity leave. After being offered a ten month fixed term contract, the prospective employee informed the company that she was pregnant. The company withdrew the offer on the basis that the prospective employee would have had to take maternity leave of her own, four months into the contract, and therefore would not have been able to fulfil the purpose for which she had been offered the position. Having determined that this amounted to an act of discrimination, contrary to the Employment Equality Acts, the Equality Officer awarded the prospective employee the maximum amount of compensation permissible under the legislation (€12,697) for a claim regarding access to employment.
The company argued that the decision to withdraw the job offer was essential to the proper functioning of the business and that considerable upheaval would have arisen if the prospective employee was absent on maternity leave during the busiest period of the contract. However, the Equality Officer referred to a number of decisions of the European Court of Justice in support of the conclusion that the protection afforded to women during pregnancy should not be subject to a company’s operational requirements. Further, the fact that the contract was for a fixed period was irrelevant.
The prospective employee had not informed the company at the interview that she was pregnant, despite having been asked if there was any reason that would prevent her from completing the full ten months of the contract. Nonetheless, the Equality Officer concluded that the company had “failed to demonstrate that the decision to withdraw the offer of employment from the complainant was wholly unconnected to her pregnancy”.
The decision also highlights the principle enshrined in the Employment Equality Acts that employers can be found to have discriminated against not only past and present employees but also prospective employees in terms of access to employment. Advice should always be sought when considering withdrawing an offer of employment where there is a possibility that a claim of discrimination may arise.
Contributed by Caoimhe Heery.
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