Discrimination on return to work after pregnancy/ maternity leave.
Pregnancy-related discrimination cases are becoming more and more prevalent in the Workplace Relations Commission (WRC) in recent years. Discrimination due to family status (Pregnancy) has been legislated under the Equality Acts as unlawful. Ireland has well-established maternity leave protections and prohibits discrimination due to pregnancy, and further discrimination on a mother’s return to work.
Section 18 of the Maternity Protection (Amendment) Act 2004 exists to protect female employees from essentially being demoted upon their return to work from maternity leave.
In 2019, the WRC ordered a rental company to pay €61,000 to a general manager after it was determined that she was “effectively demoted” when she returned from maternity leave (ADJ-00013042). However, not all demotions are so easy to identify. More subtle practices can be exercised which ultimately have the same effect. A new position may be created above the female employees’ position, or they may be moved to a new role, which on the surface, looks to be at the same level but may lack bonuses or styme career progression that would have been available in the previous role thus indirectly creating a demotion.
Such indirect demotions can be far more difficult to identify particularly when coupled with the fact that the female employee is returning from maternity leave and is likely to be stressed, anxious and/or overwhelmed and may not have the necessary energy to institute a claim.
A breach of section 18 does entitle the female employee to bring a claim to the WRC but only if the complaint is made with 6 months of the occurrence of the discriminatory practice (section 31) as opposed to from the time in which the female employee became aware that such a demotion had occurred.
When all factors relating to the female employees return to work are considered – juggling the return to work with childcare, the inevitable catch up a prolonged absence would cause and any anxiety or stress associated with the return – 6 months does seem like a short period of time that could act as a barrier to claims particularly where the discrimination is not overt and may not be apparent on her immediate return to work.
An extension of 12 months may be allowed in “exceptional circumstances”. However, in the recent case of A Social Worker v A Service Provider [ADJ-00028358], the demands of a very small baby and the challenges of returning to work (in this case a new role) were not accepted by the adjudicator to amount to exceptional circumstances.
A limited time to prepare a complaint, coupled with very strict interpretations does appear to place the onus on the female employee to recognise and act upon a belief of discrimination rather than, as was the aim of the legislation to penalise employers who seek to demote female employees on the basis that they have had a baby and are returning to work as mothers. A female employee who does become aware after a 6 month period that they have been the victim of such discrimination does have the option of making a claim under the Employment Equality Act for discrimination on the basis of family status and gender. However, it does appear illogical that they are barred from taking an action under the regulations which were specifically created to help them.