In February of this year, the Equality Tribunal made an award of €315,000 in compensation against O’Callaghan Hotels for harassment, discrimination and victimisation of a former senior employee.
Julie O’Brien was Director of Sales and Marketing with O’Callaghan Hotels and gave birth to two children during her time with the group, the first in 2005 and the second in 2008. She gave evidence to the Equality Tribunal that during both pregnancies she was put under significant pressure by management in relation to her work and ended up working through her maternity leave.
Ms O’Brien claimed that once she became a mother she requested to work a four day week, but this was refused. She also stated that a member of management was very negative in relation to her having children and said to her that he would prefer if she left the business if she should have a third child. He later apologised for the remark.
After the birth of her second child, Ms O’Brien had two miscarriages and, when she became pregnant for a third time in 2009, she claimed that she sought a ‘stress free’ maternity leave, which was due to start on 20 November 2009. Ms O’Brien claimed that instead of acceding to this request, her employer asked her to resign. She was then presented with a letter in July 2009 confirming the termination of her employment. After receiving this letter, Ms O’Brien took sick leave, citing ‘work-related stress’. Ms O’Brien engaged a solicitor, who wrote to O’Callaghan Hotels and stated that Ms O’Brien would resign at the end of her maternity leave in 2010. O’Callaghan Hotels claimed that Ms O’Brien had already resigned and sent her a letter at the end of August confirming the termination of her employment with effect from 20 November 2009 and asking her to arrange a meeting to complete the handover of any outstanding issues.
Ms O’Brien also claimed that access to her company fuel card was revoked without warning and her Blackberry phone was blocked. She was also sent a letter asking her to return all company property (Blackberry, credit card and fuel card), even though such property was normally retained by employees on maternity leave. Ms O’Brien claimed that the actions of O’Callaghan Hotels significantly increased the stress she was suffering.
In September 2009, she went into premature labour and her baby was stillborn. Medical evidence was given that Ms O’Brien had suffered an acute grief reaction, which was compounded by work-related stress. She was still under psychiatric care on the date of the Equality Tribunal hearing in May 2011.
O’Callaghan Hotels disputed almost the entirety of Ms O’Brien’s evidence in relation to the circumstances leading up to the termination of her employment (particularly in relation to discussions that took place between Ms O’Brien and members of management). It claimed that she had wanted to be involved during her maternity leave and had requested to resign. However, the Equality Tribunal preferred the evidence of Ms O’Brien on all counts.
The Employment Equality Acts provide that the Equality Tribunal may make an award of up to four years’ gross remuneration for discriminatory treatment, harassment and victimisation. In this case, the Tribunal was highly critical of the manner in which Ms O’Brien was treated and made an award of €315,000, which equated to thirty months’ salary.
While the award in O’Brien v O’Callaghan Hotels is substantial, it is just the latest in a long list of equality claims that have resulted in significant awards against employers. For example, the Equality Tribunal awarded €125,000 in Kavanagh v Aviance UK Limited, €189,000 in Murphy v Iarnród Éireann and €327,000 in 58 Named Complainants v Goode Concrete Limited.
The decision is also a warning to employers that appropriate accommodations must be made for pregnant employees. Employees have a right to maternity leave (up to forty two weeks in total) and if an employee works during maternity leave, or returns to work early from maternity leave, the employer should obtain a written note from the employee confirming that she agrees to return to work in the circumstances. Employees may also need to be accommodated by allowing them to take parental leave, or work reduced hours, after returning from maternity leave.
The decision also makes it clear that inappropriate comments in the workplace (such as those related to an employee’s pregnancy) can prove very expensive for an employer. Irish law provides that anything done by a person in the course of their employment will be treated as done by that person’s employer, whether or not it is done with the employer’s knowledge or approval. It is therefore imperative that employers take reasonable steps to prevent inappropriate conduct, which should include ensuring that an appropriate ‘Dignity at Work’ policy is in place and providing employees with training on equality issues.
Employers also need to be particularly cautious in situations where a disgruntled employee appears to offer his or her resignation. An employee can often have second thoughts after resigning and claim that he or she was forced into the resignation by the actions of the employer. Without clear written evidence to confirm that this is not the case, a ‘resignation’ can very quickly turn into an expensive claim for an employer to defend.
If in doubt, the employer should seek legal advice.