MJ O'Connor Solicitors

 

The claimant interviewed for a position of financial accountant which was arranged through a recruitment agency on the 4^th of February 2008. Later that afternoon she was offered (through the recruitment agency) a 10 month contract subject to medical and references. The following morning the claimant contacted the financial controller of the Company to inform him that she was accepting the offer. During the course of this conversation she informed the financial controller that she was pregnant. He queried her due date. She told him her due date and indicated that she would be able to fulfil the first four months on the contract prior to the birth and the balance subsequent.

 

The claimant states that the financial controller contacted her later that day and withdrew the job offer. The claimant submitted that the withdrawal of the offer of employment because she was pregnant constituted unlawful discrimination being in breach of her rights to equal treatment and access to employment. She also submitted that she was treated less favourably on the grounds of gender and that the job offer which was made to her was withdrawn once the employer learned of her pregnancy.

 

The Company in its evidence stated that it required the position to cover an existing maternity leave within the Company. They said that at the interview they specifically enquired of the claimant if there was any reason which would restrict or hinder her capacity to perform the contract. They state that the claimant confirmed that she would be in a position to honour the contract in full and that she did not indicate at the interview that she was pregnant. They pleaded that when the claimant spoke to the Company on the morning she accepted the job offer she informed them she was pregnant and that she could only be in a position to honour the first four months of the 10 month fixed term contract. The Company stated that the Financial Controller then informed the claimant that he would revert to her regarding the matter.

 

The Company gave evidence as to its financial year end and the fact that it was essential for the financial accountant to be available to work during a particularly busy period when The claimant would not have been available and stated that having made the decision that she was not in a position to fulfil the 10 month fixed contract that they had informed her on this basis.

 

Arguments were put forward as to whether a contract was in existence or not.

 

The Equality Officer set out the burden of proof which applies in a claim of discrimination, i.e. that the Complainant must establish a prima facia case i.e. facts from which it may be presumed that there has been discrimination. If the Complainant succeeds in doing this then, and only then, it is for the Respondent to prove that the actions do not constitute discrimination.

 

The Equality Officer referred to the special protection afforded to pregnant women in employment. He referred to the Dekker case where the ECJ held that “since pregnancy is a uniquely female condition that any adverse treatment as a result of or connected to pregnancy is direct discrimination on the grounds of gender”. He found that the fact that the job offer was withdrawn after the claimant informed of her pregnancy was sufficient consequence to establish a prima facia case.

 

The Company then pleaded that the job offer was withdrawn on the basis that The claimant would not have been in a position to complete the entirety of the 10 month contract because she would have been absent on maternity leave for a significant period of time during the busiest part of the contract. They said the withdrawal was not discrimination on the grounds of gender and argued that any contract that was in being was discharged by the doctoring of frustration.

 

The Equality Officer referred to the fact that the ECJ has held that any adverse or unfavourable treatment of a woman as a result of pregnancy in terms of access to employment is prohibited and referred to a specific holding in the Dekker case that an employer is in direct contravention of the Counsel Directive if, inter alia, he refuses to enter into a Contract of Employment with a female candidate whom he considers to be suitable for the job where such refusal is based on the possible adverse consequences for him of employing a pregnant woman. The Equality Officer went on to consider that an offer had been made and had been accepted and subsequently withdrawn. He referred to the case of Webb v Emo Air Cargo where it was held that “the availability of an employee is necessarily, for the employer, a precondition for the proper performance of the employment contract. However the protection afforded by Community Law to a woman during pregnancy and after child birth cannot be dependent on whether her presence at work during maternity is essential to the proper functioning of the undertaking in which she is employed. Any contrary interpretation would render ineffective the provision of the Directive”. He referred to a further case of Tele Danmark A/S v Handels where, in reference to the previous statement, the Court held that such an interpretation cannot be altered by the fact that the contract of employment was concluded for a fixed term.

 

The Equality Officer was satisfied that the Company could not rely on the defence that the decision to withdraw the job offer was essential to the proper functioning of the business in order to rebut the presumption of discrimination. He also decided that the fact that the Contract was a fixed term duration did not exempt the Company from its obligations to comply with the Law. The Equality Officer also decided that the Company could not rely on the fact that the claimant did not inform them of her pregnancy during the interview in order to justify the withdrawal of the job offer. He made the point that the Company did not make any attempt to discuss with The claimant the implications of her pregnancy would have on her performance of the Contract but instead arbitrarily decided that she would not be in a position to complete the entirely of the Contract and withdrew the offer on this basis. He therefore found that the Company had failed to demonstrate that the decision to withdraw the offer of employment was wholly unconnected to her pregnancy and therefore had failed to rebut the inference of discrimination.

 

 

For further information on Equality or relating to employment law

Contact Catherine O’Connor - e-mail coconnor@mjoc.ie