Subsequent decisions in Ireland have replicated the European approach. The conclusions in Harco Investments Ltd. (T/A Wilton Hair and Beauty Salon) v. Lorraine O’Sullivan36, Kwok Lee & Yuk Lee (T/A Peking House) v. Michelle Fox37, Dollymount Cri?? che & Montessori School v. Siobhan Finnerty38 and Shinkwin v. Millett39 all point toward an extremely uncompromising attitude to pregnancy discrimination in the workplace, and signify reform in Labour Court recommendations in these cases.
Ill-treatment of a woman during her pregnancy for absences relating to a pregnancy-related illness was also deemed discriminatory in North Western Health Board v.McKenna40, a case that was ultimately referred to the European Court of Justice for a preliminary ruling. Pregnancy discrimination has evidently become an expensive concern for employers, with compensation payouts often averaging a full year’s salary.
The Equality Officer in the recent hearing of Lane v. MBNA41 – a case that encompassed similar circumstances to those incurred by you – decided to award the complainant i?? 17,000 for the gender discrimination suffered, and in doing so illustrated the likelihood of your claim succeeding in the present climate.
I would also draw striking similarities between your situation and that of the claimant in Pamella Scott v. Deborah Costello42. In this case the employee had also progressed through the preliminary stages of a promotion procedure only for her second interview to be cancelled having made it known to her employer that she had become pregnant. Ms. Costello was permitted to recover compensation in respect of the employer breaching both the Equal Treatment Directive43 and sections 6(2) and 8 of the Employment Equality Acts 1998-2004.
Just like in this case, your interview was effectively (but not literally) ‘cancelled’ once the interview panel became aware of your pregnancy (the thought process of the interviewing panel was irrevocably contaminated from this point onwards); the only difference being that the employer knew of this fact before the interview was allowed to take place rather than during it in your case. As you can see, your case is by no means unique. In fact the Equality Authority revealed that it receives roughly 300 complaints (10% of all Equality authority casework files under the Employment Equality Acts) relating to pregnancy discrimination every year.
44 Authority CEO Niall Crowley reveals that the Labour Court is intent on “sending out a strong unequivocal message”45 that such discrimination will not be tolerated. Having ascertained the protection afforded to you by the law and disclosing to you the relevant case-law that will provide authenticity to your claim, it is necessary that we consider the options available to you in formally processing the claim. I must firstly remind you that you are entitled by law to request and receive a rationalization of events from your employer’s perspective.
46 It is open to the Company to refuse to provide such information to you and in those circumstances inferences can be drawn into their refusal at a subsequent Tribunal hearing. You can then refer a claim to the Equality Tribunal within six months of the date when the act of discrimination (the interview) occurred by completing an EE. 1 form provided by the Tribunal. 47 The Tribunal may extend the time limit up to a maximum of twelve months in exceptional circumstances. 48 The Labour Court acknowledged such exceptional circumstances on behalf of the complainant in ALDI Stores (Ireland) Limited v.
Jennifer Murphy49, however it is generally stringent in what constitutes ‘exceptional circumstances’. A communicative problem between complainant and solicitor (GMK Ltd v. Julie Embleton50) or a pregnancy (Mercury Analytical Ltd. v. Christine O’Callaghan51) or non-serious illness (Calyx Ltd. v. James Mills52) does not constitute ‘exceptional’ in the opinion of the Court. However my advice is that you proceed immediately to initiate a claim if that is your intention since there are no guarantees that an extension of time will be granted to you.
An Equality Officer will subsequently investigate the issue on a quasi-judicial basis. 53 If the matter is one that is deemed reconcilable via mediation, an Equality Mediation Officer will be selected to mediate between both parties. This however is not compulsory and will not apply if either party objects. 54 The Tribunal may not award costs (legal fees, travelling expenses, etc. ) in any event. Accordingly if you are successful you must still pay your legal advisors. However you do you face the risk of having an award of costs made against you in the event that your case fails.
The Equality Officer does have a choice of possible corrective remedies in equality cases such as your claim. Under the Employment Equality Acts 1998-2004, the Tribunal can make an order for your employer to improve its equality policy. 55 Akin to DCU v. Horgan56 it may also compensate you up to two tears earnings for the distress caused and instruct your employer to appoint you to the position you sought with full retrospection of salary and benefits. If this is not logistically possible, as in Eircom Ltd. v.
Bridget Gertrude Boland57, then it may recommend that you be appointed to the next promotion position that becomes available and award you further compensation in respect of arrears of pay, which you would have received had you been treated fairly in the initial interview process and promoted accordingly. If not satisfied with the verdict of the Equality Officer, you may appeal in writing to the Labour Court within 42 days of the decision and are enforceable by the Circuit Court58. The only further avenue of an appeal is to the High Court on a point of a law.
The decisions and recommendations of both the Labour Court and Equality Tribunal under the Employment Equality Acts 1998-2004 are legally binding and decisions are published. 59 You may however choose to overlook the Equality Tribunal entirely and refer your grievance directly to the Circuit Court. Section 14 of the Employment Equality Acts 1998-2004 specifically protects you from being unjustly victimized in any way for making a complaint about discrimination. In the aforementioned dispute of Lane v.
MBNA60, the respondents were obliged to pay the complainant hefty compensation of i?? 30,000 for the victimisation alone that she endured. 61 With the details of this case being so similar to your proposed claim, I feel that you are in a strong position, in that your employer would be unlikely to victimise you and run the risk of incurring a similar penalty. In the present case it is obvious you were blatantly the most qualified candidate for the post advertised and your non-selection must have been based on discriminatory grounds, namely your marital status and pregnancy.
You have substantial grounds to constitute a prima facie case against your employer and the onus will be on them to demonstrate that they reached their decision to engage Ross based on purely objective reasons based upon the suitability of each of you to carry out your job in a proper manner. 62 They must prove either, that the contentious questions were a necessary part of the interview and served a functional purpose; they were asked of all the candidates and ‘male comparators’; or that they served to satisfy specific criteria set out prior to the interview process.