DISMISSED FOR BEING PREGNANT

EMPLOYMENT LAW

Dismissal for Being Pregnant

The plaintiff worked in the defendant’s restaurant as a general assistant. In July 2018, she informed her line boss that she was pregnant. This information was forwarded to the general manager, a Mr Barnes. He commented that there ‘must be something in the water ‘as a number of employees were on pregnancy leave.

After that, the plaintiff took sick leave as she experienced back pain and nausea. On her return in September 2018, she met Mr. Barnes and her supervisor on how to deal with the situation. The plaintiff alleged that Mr. Barnes informed her of her social welfare entitlements and having spoken to a colleague, the plaintiff informed the defendant that she would take certified sick leave.

The plaintiff’s final medical certificate expired on 29 November 2018. On the 18th of November 2018, she was informed that there was an envelope for her and on visiting the office of the restaurant, the plaintiff’s supervisor handed it to her which contained the plaintiff’s P45. The supervisor claimed she knew nothing about the contents of the envelope.

The plaintiff took her case to the Workplace Relations Commission (WRC). At the hearing, there was confusing evidence from Mr. Barnes about the issuing of the P.45. It transpired in evidence that the P45 had been filed with the Revenue Commissioners and the day after the plaintiff was given her P45, a permanent full-time position for a general assistant had been advertised by the defendant.

The plaintiff won her case in the WRC and the Circuit Court, and the defendant appealed to the High Court.

The High Court judge determined that the sole issue before it was to decide whether the issuing of the P45 constituted a dismissal.

The defendant submitted that the issuing of the P45 did not constitute a dismissal. The judge in considering this submission stated: ‘’While a P45 is an administrative statement of an employee’s pay and deductions for the year up to the date of termination of employment, it is easily and most readily understood as the document which, in itself, is notice that the employment itself has terminated. It is understood in popular language as such, even by those who know nothing of its legal effect and have never seen a P45, the term is understood: ‘getting your P45’ means being fired.”

Bearing in mind that Mr. Barnes had discussed the plaintiff’s options with her previously, the judge did not accept that Mr. Barnes impressed upon the plaintiff that her job would remain open and would only be filled by a part-time employee.

The defendant submitted that the plaintiff is not entitled to treat a P45 as a dismissal without making “proper and substantive inquiry” of her employer, in line with Finnegan v. Boylan Group UD2/2001 and A General Operative v. A Packaging Company ADJ-00008541.

In response the judge said: ‘Context is everything. While it was submitted that the plaintiff should have sought clarification from Mr Barnes, Ms Haragus or Ms Lungu, this is not a reasonable suggestion. Ms Haragus was not at work, Ms Lungu had already told the plaintiff she did not know anything about it, and the document had come from Mr Barnes as that witness conceded. In those circumstances, recalling his reaction to her pregnancy, the conversation about her getting social welfare, and the arrival of a P45 with no explanation, the plaintiff took the natural inference: she had been fired.”

The judge continued: ‘If, as the defendant asserts, the P45 had issued in error, it was for the company to contact her and correct the record, not for her to make sure that the P45 was intended for her. It clearly was. The attempt to ‘row back’ was too little, too late. The letters did not dispel the impression that the plaintiff had been fired but attempted to lay the blame at her door. The date of cessation on the payroll, the ad for her job and the steps taken to create and circulate the P45 satisfy me that this was a deliberate decision.”

The judge explained that the effect of the Employment Equality Act, 1998 is that there is a presumption that the dismissal of a pregnant woman is discrimination on grounds of gender.

The judge said that it was reasonable for the plaintiff to believe that she had been fired on account of her pregnancy and that there was no onus upon her to follow-up on the issuing of the P45. Consequently, the judge found in favour of the plaintiff and upheld the decisions of the WRC and Circuit Court.

In deciding the compensation amount, the judge found that the plaintiff was entitled to €66,501.28 pursuant to s.7 of the Employment Equality Act, 1998.

Karpicz v Graham O’Sullivan Restaurants Limited [2024] IEHC 432.