Desperate Housewives - Fact or Fiction?
The number of people that have lost their jobs in the Irish workforce over the last 2 years has been unprecedented. Anecdotal evidence suggests that this is having a disproportionate impact on women, particularly pregnant women and those on maternity leave, adoptive leave or parental leave. Women are finding that once the employer is aware of the pregnancy or upon seeking to return to work after maternity leave, they are targeted for redundancy as businesses strive to cut costs.
The current series of Desperate Housewives deals with this topical issue. We see Lynette hiding her pregnancy to secure promotion in the workplace. When her boss Carlos finds out he ultimately terminates her employment after first moving her office to a broom closet!
So what are an employee’s options if she finds herself at risk of termination while pregnant or on return from maternity leave?
Firstly, there is a misconception that once an employer knows that an employee is pregnant she is protected from termination. This is not the case. An employee’s position is only protected while she is on maternity leave. An employer is entitled to terminate a pregnant employee while still at work or on her return to work from maternity leave as long as he/she can demonstrate that the termination is not related to the pregnancy or any other discriminatory reasons.
However, a pregnancy related dismissal will be immediately tainted as it is very difficult for an employer to distance the decision to terminate from the pregnancy. Under the Unfair Dismissals Act pregnancy is deemed an automatic unfair ground for termination. The employee also has the option of bringing a claim under the Employment Equality Acts which protects a pregnant employee from discriminatory treatment on gender grounds. This means that the employer will have to justify their decision to terminate. Under both Acts the maximum compensation that can be awarded is two years salary. A terminated employee also has the option of seeking her job back and being re-instated to her position. In the current economic climate this remedy may be an attractive option for an employee (particularly in larger workplaces) and should be considered. The reality is that a pregnant woman is unlikely to secure alternative employment until after the baby is born even though the Employment Equality Acts outlaw a prospective employer not hiring an employee because she is pregnant. In this regard we have seen the recent media reports where Denise Van Outen has stated her disappointment at being sidelined from the latest BBC Andrew Lloyd Webber talent show where she said being pregnant was an issue.
Employers should be conscious that any move to terminate an employee while pregnant should be carefully considered. The Maternity Protection Legislation and Equality Legislation are there to ensure that before making any decision to terminate (particularly in a redundancy situation) that the employer takes a fair and balanced view of all employees in the workplace and that transparent selection criteria are applied. For example, in a redundancy situation if an employer has a “basket” of non-discriminatory selection criteria and a pregnant employee is selected following an impartial and objectively fair review of staff, an employer should be able to successfully defend any challenge to the termination. An employee must not be considered “different” because she is pregnant.
The employer must also look at possible alternatives to termination. This can involve creativity on the part of the employer. For example, pay cuts, a shorter working week, job-sharing and unpaid leave may all be solutions before making the decision to terminate. The benefit to following a transparent process is that an employer can be confident that he/she has selected the appropriate people for redundancy and it gives women a fighting and realistic chance to remain in the workplace.
It seems the recent episode of Desperate Housewives is not that far removed from the reality of working life experienced by Irish women especially of child bearing age. The issues which affected Irish women before the introduction of the Employment Equality Act 1977 are still regrettably very much current in 2010 and have not abated.
If you have any queries in relation to the above, or for further information, please contact Anne Lyne, Solicitor alyne@hayes-solicitors.ie
The content of this article does not constitute legal or commercial advice but is merely indicative of current developments in the law. Readers should seek specific advice, preferably from Hayes solicitors (!) before making any decisions.
Further coverage of Anne Lyne's article can be found in the Irish Examinar:
http://www.hayes-solicitors.ie/news/IrishExaminerArticle-8March2010.pdf
You can also listen or download the podcast from 'Today with Pat Kenny' on RTE Radio 1: http://www.rte.ie/radio1/podcast/podcast_patkenny.xml