Background

The Workplace Relations Commission (WRC) awarded €13,000 in compensation to an employee who was dismissed while on sick leave following a miscarriage. The respondent in the case, a chicken processing company in Mayo, appealed the Workplace Relations Commission (WRC) decision to the Labour Court and argued that they were not aware the claimant’s absence was pregnancy related.

The claimant was employed by the respondent from 24th November 2015 until she was dismissed on 29th December 2015. The claimant was notified of her dismissal by phone on the 29th December due to her being “sick for too long”. At the time of her dismissal, the claimant was on sick leave for 12 days due to having an ectopic pregnancy. Following the telephone conversation, the claimant received a copy of her P45 which stated her effective date of dismissal as 18^th December 2015 on the P45.

Prior to the claimant’s dismissal, she submitted a sick certificate covering her absence from 17^th December up until the 28^th December 2015, this certificate didn’t specify the nature of her illness. However, a subsequent sick certificate was submitted covering her absence from 22^nd December 2015 and this certified stated post d/c miscarriage.

The respondent was closed for the Christmas period from 24^th December until 28^th December 2015. The claimant made contact with the respondent when the office reopened on 29^th December and when she phoned she was notified that she was dismissed due to her absence. The respondent argued that at the time of the phone call they were not aware of the certificate that was received stating the reason for her absence was due to a ‘miscarriage’.

The respondent argued when the sick certificate was discovered an apology was given and the claimant was advised she could re-apply for her job.

Not surprisingly, the respondent received a letter from the complainant’s legal representation which highlighted that the claimant’s dismissal was pregnancy related. However, the respondent argued they were unaware of her pregnancy and offered her job back.

When the claim was before the Labour Court the respondent again argued the dismissal was not pregnancy related as they were not aware the claimant was pregnant. However, the person who notified the claimant of her dismissal gave evidence to the contrary stating the appellant was aware of the reason for absence prior to instructing the witness to dismiss.

Labour Court Determination

The Labour Court concluded that they heard evidence confirming “the Appellant was aware at the point of the dismissal of the Claimant’s reasons for her unavailability to attend work, that it was the Claimant’s pregnancy and miscarriage which was the cause of her unavailability to attend work.”

They also said “the Court is satisfied that a medical certificate was delivered to the Appellant on 21^st December 2015. It is common case that this certificate specified the miscarriage suffered by the Claimant as the reason for her unavailability to attend at work.”

They found that the appellant was aware of the claimant’s illness was “related to her pregnancy and miscarriage.”

Finally, the Court stated “In all of the circumstances, the Court concludes that the operative reason for the dismissal of the Claimant was her absence through illness arising from her pregnancy and her miscarriage. The Court is satisfied, having regard to the Act at Section 6(2)(f), that the dismissal resulted wholly or mainly from the pregnancy of the Claimant and was, consequently, by operation of the Act, unfair.”

The Labour Court increased the Workplace Relations Commission (WRC) awarded from €13,000 to €17,000 in compensation for the unfair dismissal.

Learning points;

1. Pregnant employees have vast protection under employment law;
2. Although there is generally a 12-month service requirement for employees to take Unfair Dismissal claims, there are some exemptions to the rule. An employee with less than one years’ service can take a claim if their dismissal is related to one of the following;
3. trade union membership or activity,
4. exercising rights to protected a leave,
5. Raising a protected disclosure or
6. the religious or political opinions of the employee;

If you have any questions regarding the unfair dismissal act please contact the advice line on 1890 253 369