Sylwia Wach, a Polish receptionist began working at the Waterford Travelodge in 2007 where she was initially employed as an accommodation assistant before becoming a receptionist one year later.  Ms Wach went on maternity leave on 23rd March 2011 before returning on 21st September 2011.

On her return from maternity leave, Ms. Wach found her hours reduced, and also found that the company brought in a staff member from Cork to do shifts when Ms. Wach was available.

Her manager allegedly expressed annoyance when he learned that she had raised this matter with their HR manager. He further stated that Ms. Wach’s contract was only for 24 hours, and that therefore, that was all she was entitled to.  Ms. Wach outlined that those 24 hours were “minimum hours”, and that, on agreement with the previous manager, she had been working full time for the last three years.

Her HR manager also accused her of not having sufficient English to work the job.

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Ms Wach sent a written complaint about all the matters to her manager in October 2011 and as a result, a meeting was held in November 2011. Ms. Wach told the tribunal that following the complaint, her manager allegedly threatened to look through CCTV footage for any possible wrongdoing by her, where she was accused of selling alcohol to non-residents.

Equality Officer Stephen Bonnlander outlined that he was satisfied Ms. Wach was fluent in both written and spoken English and that Ms. Wach’s manager was “determined to make life difficult for her”.

In his judgement Mr. Bonnlander said:

“I find that the complainant is entitled to succeed in her complaint of discrimination on the ground of gender, with regard to her conditions of employment. I do not accept the complainant’s manager’s statement with regard to the complainant’s proficiency in English, and therefore do not accept his reason for not assigning her day shifts, I find that the complainant is also entitled to succeed on her complaint of discrimination in her terms and conditions on the ground of race.”

In accordance with Section 82 of the Acts, Mr Bonnlander ordered that Travelodge pay the Ms. Wach:

(i) € 21,000 which equals one year’s salary for the complainant according to her P60 form for 2010 in compensation for the effects of discrimination and

(ii) € 42,000 or the equivalent of two year’s salary in compensation for the effects of victimisation. This reflects the seriousness of the finding that the complainant found herself immediately threatened with false disciplinary charges when she exercised her right of complaint under the respondent’s own policies.

He also said that the awards were in compensation for the distress suffered by the complainant and are not in the nature of pay and therefore not subject to tax.

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The respondent, who had gone into liquidation by the time the Hearing took place in December, 2013 did not attend the Hearing.  The liquidator, who received adequate notice of the Hearing, chose not to attend either. The Hearing proceeded in their absence and the complainant built a case against her former employer in front of Equality Officer, Vivian Jackson.

According to the complainant’s uncontested evidence, she informed her employer that she was expecting her third child in November 2009. She alleged that her employer’s attitude towards, and treatment of, her worsened from this point. She had had a miscarriage in the summer of 2009 and, according to the complainant (Ms. M), her employer (Mr. W) responded to her November pregnancy news with the comment “Jesus Lisa, you don’t hang around”. The complainant gave evidence that a few weeks after this comment her employer again referenced her pregnancy but this time it was in front of clients and his comment shocked her. The complainant gave evidence that Mr. W implied to the clients that he was not happy that she was pregnant and stated that ‘she was meant to stop after two’. The complainant described an incident in January 2010 where she was involved in a car accident. She claimed that a doctor certified her as unfit for work for a week in order to ensure that she and her unborn baby were unharmed. Even though she did not have access to a vehicle for the period, the respondent told her that she was required to attend work the following Monday. Ms. M complied with her employer’s request because she was fearful of losing her job. In February 2010, Ms. M requested a meeting in order to discuss cover during her maternity leave – this was due to begin at the end of April 2010. Mr. W agreed to hire an employee during the period that Ms. M was due to be on her protected leave. The complainant was under the impression that the new hire would begin work on a fixed term contract, however, during the course of the interview the successful applicant, Ms. S, asked about the duration of the contract and, to the complainant’s surprise, Mr. W said that he was ‘not sure that Lisa will be coming back to work’. The complainant said that she had never implied that she would not return to work and, in fact, not returning was ‘undesirable from a personal and professional point of view and impossible from a financial perspective’. The complainant gave evidence that the respondent ‘froze her out’ – he undermined her with clients and changed arrangements regularly. He also began removing tasks from the complainant. Ms. M believes that this occurred because her employer no longer felt that, with three children, she would be committed to the company. The complainant demonstrated times where she had shown considerable commitment to the company in the past and said that the employer had no reason to believe that her commitment would diminish. The complainant sought a meeting with Mr. W prior to her leaving for her maternity leave – she wanted to discuss her remuneration and benefits during the leave. In the past, the employee had been allowed to keep her company phone and car during the leave and the employer also topped up her state maternity benefit so she continued to receive her normal monthly net income throughout her maternity leave. This time it was different – Mr. W only offered the complainant a top-up payment of €150 per month – far less than what was offered during previous leave periods. Ms. M accepted this. To her surprise, Ms. M was obliged to return her company car and phone for the duration of her leave on this occasion. Ms. M was due to complete her maternity leave at the end of January 2011 and in December 2010 she contacted her employer to give notice of her intention to return to work. She did not receive a response to this e-mail and so she e-mailed Ms. S, who had been hired to cover the period of maternity leave. Ms. S confirmed that Mr. W had received the complainant’s e-mail. Ms. S sent another e-mail on 6^th January 2011 requesting that Ms. M attend a meeting with Mr. W on 14^th January. At this meeting, Ms M was notified that her role of Financial Controller no longer existed in its previous format within the new company structure. Ms M was informed that the role was redundant and that another position was available to her as an alternative. The new position was a more junior role that not only incorporated additional hours but also a 40% reduction in pay. Ms M was not satisfied with this – she found it to be an unacceptable alternative to the Financial Controller role and demonstrated that her original role was not in fact redundant as MS. S continued to perform Ms. M’s original duties and was listed as the company’s Financial Controller on the company website. The complainant researched her position in light of the new role that her employer offered her as an alternative and realised that she was not obliged to accept the offer. The respondent offered Ms. M her original terms and conditions (including rate of pay and hours), however, the role that she was being asked to perform going forward was a clear demotion and a serious reduction in responsibility. She requested to return to her role as Financial Controller. Again it was expressed by the respondent that this role was redundant and he offered her 14 days to decide whether or not to take the new role of ‘Credit Control Manager’. Ms. M said that she was only happy to return to her original role and stated why the new offer was unacceptable in light of the fact that her original role clearly still existed. Mr. W wrote to Ms. M a number of days later rejecting her arguments and adding that, as she had not reported for duty, he considered her to have resigned. Vivian Jackson, Equality Officer, found that Ms. M had been subjected to a range of unlawful treatments. Her employer made it impossible for her to proceed wither pre maternity leave role and essentially dismissed her. The Equality Officer ordered that the respondent pay the complainant €80,000.00 in compensation for the discrimination inflicted on her.  

The employee should give their employer a copy of any advice that their Doctor/Midwife has given them if it could have an impact on the pregnant employee’s risk assessment. The risk assessment’s purpose is to evaluate the employee’s ability to carry out their role and to identify any possible risks to mother and baby.

Examples of some risks are:

• Standing/sitting for long periods
• Lifting/carrying heavy loads
• Threat of violence in the workplace
• Long working hours
• Excessively noisy workplaces
• Exposure to toxic substances
• Work-related stress
• Workstations and posture

Set out below are the different stages of a pregnant employee risk assessment:

Step 1: Identify the risks (bearing in mind that there may not be any.

Step 2 – Determine what can be done to reduce/remove any of the risks identified in Step 1. This may mean modifying the working hours or conditions of the pregnant employee. This stage can also involve assigning the employee to an alternative role during pregnancy. It is important to remember that the employer is not allowed to alter the employee’s pay for the duration of this change in role.

Step 3 – If the identified risks are great and no possibility of removal/reduction can be found (this may not be practical within the workplace etc.), the employer may decide to suspend the employee from duties until the health and safety of the mother and unborn child/children is no longer threatened. This is known as Health & Safety Leave. Health and Safety Leave can also be applicable for breastfeeding mothers. During Health & Safety Leave (the period of suspension) the employee is entitled to full pay from the employer for the first three weeks. Exceptions can occur if the employee has unreasonably refused to do the alternative ‘risk-free’ work offered to them or if the employee does not meet any reasonable requirements. 

The Department of Social Protection pays Health and Safety Benefit after the first three weeks of Health and Safety Leave has passed. In order to qualify for Health and Safety Benefit, you must meet certain criteria and PRSI contribution conditions. Employees are still considered to be in employment so they continue to accumulate their annual leave entitlement. However, they are not entitled to payment for public holidays that occur while on Health and Safety Leave.

It is essential that the employer regularly monitors and reviews any assessment made to take account of the possible risks that may occur at the different stages of pregnancy.

The current upper rate of €262 per week is an entitlement enjoyed by the vast majority of women in Ireland claiming Maternity Benefit. The reduction by €32 per week, which will be effective for new Maternity Benefit claims from January 2014, may discourage women from having children. Alternatively, it may force mothers to avail of shorter periods of Maternity Leave than they would like because they simply cannot afford to remain out of the workplace for the full 6 month period.

The reduction of €32 per week over 6 months will see many new mothers lose out on €832 in Maternity Benefit.

Some employers pay the difference between the Department of Social Protection Maternity Benefit figure and the employee’s regular salary (a “top-up” amount) as a gesture to employees so that they do not suffer major financial implications while on Maternity Leave.

The Budget 2014 decision to reduce the amount paid by the State means that employers who cover the difference between Maternity Benefit and an employee’s regular salary will now have to find an additional €832 per employee over the 6 month period in order to maintain the same level of maternity pay for employees while they are availing of maternity leave.

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There is no obligation on mothers to avail of the full 26 weeks, however, a minimum of 2 weeks must be taken before the end of the week of the baby’s expected birth and at least 4 weeks must be taken after the birth.

On 10^th July 2013 Senator Mary White published a Bill which proposes that fathers be given the opportunity to share in the maternity leave afforded to mothers.

The Legislation, entitled the ‘Parental Leave Bill 2013’, recommends that the current maternity leave system is revised to enable a woman, if she wishes, to transfer a portion of her 26 weeks leave (and associated benefits) to the father of the child.

Senator Mary White believes that “The greatest challenge facing the country is to create employment to offer hope and a potential living to the 300,000 unemployed and the young people in our schools and colleges. The only way we can create jobs is to encourage new enterprise.”

The aim of the Bill is to inspire female entrepreneurship in order to assist in the creation of jobs in Ireland – 50% of the population in Ireland is women and yet the number of Irish male early-stage entrepreneurs is approximately 2.5 times that of the female equivalent.

Senator White explained that women currently face more obstacles than men when becoming entrepreneurs and developing businesses. She hopes to minimise these obstacles in order to make the most of this untapped resource.

Typically, in this nation, women tend to be tasked with raising young children – Senator White wants to modify this by giving fathers the opportunity to share in the associated responsibilities. Allowing fathers to share in the maternity leave entitlements currently offered to women may begin to change the trend of the male-dominated entrepreneurial world going forward.

The Senator said “This flexibility in the maternal leave scheme would allow women entrepreneurs to devote more time to their enterprises.”

It appears as though the “Parental Leave Bill 2013” is just one of a number of new initiatives that is contained in the forthcoming policy paper promoting women in entrepreneurship.