The Labour Court has awarded the maximum amount open to it-€51,168-for the effects of discrimination in a case involving an employee returning to work after maternity leave.
Karen Kelly worked for G4S Secure Solutions (Ireland) Limited and had been awarded €11,602.50 at a Workplace Relations Commission hearing. Both employer and employee appealed this decision, the employee not being satisfied with the amount awarded and the employer not happy with the decision to find discrimination against Ms Kelly.
Ms Kelly had brought her claim for discrimination pursuant to the Employment Equality Acts 1998-2015 on the basis that the employer did not let her return to the post she had occupied prior going on maternity leave.
Ms Kelly had been employed on a site in Swords but after her return from maternity leave G4S had instructed her not to attend the Swords site. She was advised that she was not allowed to return to that site because the employer’s client in Swords had requested that she not return to their site.
Ms Kelly was offered a fixed term contract-of 3 months, later extended to 6 months-in the employer’s head office in Ballymount. This was problematic for the employee, however, as it involved a 4-hour round trip to work and no other offers were made to her.
In April 2018 the employer stopped paying Ms Kelly and Ms Kelly requested her P45 in June 2018.
Ms Kelly’s case was founded on discrimination on the basis that had she not gone on maternity leave she would in all probability continue to work in the Swords site on a permanent or CID contract.
The employee’s case
Ms Kelly’s side argued that where a dismissal is based on a discriminatory ground the Labour Court is obliged to take into account the manner and effects of the dismissal to ensure any award is effective, proportionate and dissuasive in accordance with the principles in the ECJ case of Von Colson& Kamann v Land Nordrhein-Westfalen  ECR 1891.
The fact that she was not given her P45 was also raised as an issue which compounded Ms Kelly’s difficulties in accessing social welfare payments.
The employer’s case
The employer’s position was that she was not dismissed nor discriminated against but the employer’s hands were tied insofar as it was their client who insisted that Ms Kelly not be sent back to the Swords site. The employer also stated that Ms Kelly had resigned by reason of her seeking her P45 and they had done their best to get her back onto the Swords site, but the client would not agree to this.
For this reason, they claimed, no discriminatory dismissal had occurred.
Labour Court findings
The Labour Court referred to the general right to return to work on the expiry of protective leave, as set out in the Maternity Protection Act 1994 and to the Employment Equality Acts dealing with discrimination in relation to work.
The Court also referred to the right to suitable alternative work in certain circumstances on return to work.
The court found that the employer could not rely on the insistence of the employer’s client that she not return to Swords as trumping Ms Kelly’s statutory rights.
It also found that the employer could not rely on the argument that it was not reasonably practicable to return the employee to her previous job and that a role involving a 4 hour round trip was a suitable alternative as envisaged by the Maternity Protection Act 1994.
The Court found that prior to her maternity leave Ms Kelly was working 30 minutes from home on a permanent contract; after her protective leave she was expected to travel 4 hours each day and work on a fixed term contract. Based on those facts the Court did not accept that the terms of the contract offered were ‘not less favourable’. The Court noted that no other option was put to the Complainant at any stage in the process.
The Labour Court was satisfied that this was a discrimination-based dismissal and awarded the maximum amount the Court could award, €51,168, as the compensation in such cases must be proportionate, effective and dissuasive.