So, you had a baby…Congratulations! And you took your maternity leave because that’s what you’re legally entitled to do. But then throughout that maternity leave you were stuck dealing with a whining, crying needy little brat with no respect for your time or space.
That’s right: your boss…
“I loved it, I loved my job. I was working towards a promotion and more and more responsibilities were being given to me. And I juggled it all. No worries. I was valued, a high performer, on the fast-track. Then I announced I was pregnant, and everything changed. I watched as everything I had been working so hard for, was destroyed.”
One-third of Irish mums experience maternity leave-related discrimination. But it is not always easy to spot this discrimination, or to tackle it.
Even after all of the recent controversies, the #Metoo Campaign, the high-profile resignations and sackings, the hand wringing in high office…nothing has changed, it’s still a Man’s world. Our State has recognised in law the crucial role played by mothers of newly born children in our society. It is the most basic pillar of any civilised society. Employment Equality laws are there to bind all employers into providing certain basic rights and entitlements to expectant mothers and new parents. That’s a wonderful thing but it is too often ignored. You would at this point feel comforted if it wasn’t for the fact that your employer or former employer, like so many others, decided to simply ignore those rights and basic entitlements.
Many women simply accept this as an unfortunate fact of life. But, that’s not right, it’s not acceptable, and you shouldn’t have to tolerate it. Going to work is not everyone’s favourite activity, but it shouldn’t be something that’s treated as an entitlement, at the gift of someone and which can be taken away from you at a whim and simply because of your gender.
Shockingly, often mothers returning to work after maternity leave will be faced with the unacceptable situation where their job has changed dramatically, is no longer there for them in its previous form or worse that there’s no job at all to return to. Perhaps the employer expects them to resume working in a different, less favourable role. Employers sometimes go so far as to dismiss an employee outright because of their pregnancy. Such scenarios are unlawful and in breach of your Employment Rights.
When your maternity leave comes to an end, you are entitled to return to work with your employer in the same job as the one you left. You cannot be discriminated against for having a baby. If you have been dismissed or overlooked for a promotion due to your pregnancy or if your employer has refused to consider your request for flexible hours and/or a job share arrangement upon returning to work you may be entitled to redress. This may also include a situation where you are refused a contract of employment or a renewal of a fixed term contract of employment due to the possibility of pregnancy. The law also provides protection from discrimination on the grounds of ‘Family Status’ which prevents your employer from discriminating against you by virtue of the fact that you have children.
“It wasn’t about the money. When I was let go by my former employer simply because of my pregnancy I was just so devastated that someone could act like that and just wanted them to realise they can’t treat people in this way.”
Christine McDermott Age 29, Waterford, Mother of a beautiful little girl
Our Client Christine was working as a care assistant in Waterford with a well-known Irish employment agency. During her time with the Agency she was always well thought of and extremely busy. She could work upwards of 45 hours a week and there was never a shortage of work to go around. At least until Christine told them of her pregnancy, that is. Then all of a sudden, wouldn’t you know it, Christine was surplus to requirements.
“I have never felt so let down and betrayed at such an important time in my life”
Her hours were significantly reduced and ended up eventually drying up altogether. Nothing else had changed. Her co-workers were still rushed off their feet and staff who had been recruited after her continued to work full-time hours. All that had changed was that Christine was expecting a baby. Christine eventually resigned in frustration.
We lodged a claim for her with the Workplace Relations Commission, did all the necessary preparatory work and attended her hearing with her in the WRC in Carlow. Her former employer also attended and vigorously fought their corner. They tried to say that the changes Christine experienced were completely unconnected with her pregnancy. They said that it was just because Christine was not sufficiently qualified to do certain tasks. This was completely untrue. Christine did have the qualifications she needed, but even if she didn’t this had never been a concern prior to her pregnancy. This also did not appear to be a problem for her former work colleagues who didn’t have the qualifications Christine in fact had. We argued that this was complete nonsense and the Adjudicator agreed and awarded Christine €17,500 for the way she had been treated.
While Karen* another Client, was on maternity leave, she met with her manager to discuss her return-to-work arrangements. She was told that there was no job for her to come back to. “The whole company is restructuring”. Karen later discovered that the man taken on to do her job continues to be employed there doing the job she used to do!
Another one of our Clients who worked for one of the Country’s biggest telcos found herself surplus to requirements after her announcement. She was PA to the C.E.O. When she was recruited, she was given a fixed term contract but was assured that this was merely a formality. Her contract would certainly be renewed on its expiry. Of course, in the meantime, our Client announced the happy news that she was expecting. Suddenly everything changed and her boss decided that her contract would not be renewed. There had been no performance issues, she had in fact been reassured just weeks before at a performance review that she was doing a great job and given extra responsibility. You couldn’t make it up! She was devastated and really felt that her confidence was shot to pieces. She didn’t in fact think that she would have the courage to face her former boss until she came across us and realised that this is not acceptable, she had done nothing wrong and that she had to stand up to them and could do that with our help.
In fact, almost a third of Irish mums experience some form of pregnancy-related discrimination, so these stories are far from unusual.
Types of discrimination related to maternity leave
Many of our Clients tell us stories of how the attitude towards them changed dramatically when they announced their news to their employer. Some were made redundant or had their role restructured, others were straight up dismissed or did not have their contract renewed when they requested or took leave. Others found their hours cut, their jobs changed dramatically or that what had previously been straight forward routine requests were now big issues for their employer.
Because this type of Discrimination can take many forms. Pay, conditions of work and work duties as well as performance assessments and career advancement opportunities are all areas which we regularly see. Missing out on opportunities for a promotion or performance appraisal because you’re about to go on mat leave; being denied maternity leave you were entitled to; or pressure to start or finish your leave earlier or later than you would have liked.
But the “classic case” of pregnancy-related discrimination we so often come across is exactly like Karen’s story; you’ve taken your maternity leave and suddenly you find that your job’s gone.
This often happens when a temporary substitute who replaced the woman while she’s on leave, is then offered the job on an ongoing basis while the woman on maternity leave is simply discarded “like an old sock”.
In other cases, the employer divides your duties among a number of employees and then decides they “don’t need her at all”.
So, are any of these situations legal? And is there anything you can do to protect your workplace rights during maternity leave?
Your job is guaranteed while you’re on maternity leave and during your pregnancy
You are entitled to get your job back after your maternity leave ends. If that job no longer exists when you get back, you’re entitled to a job that’s substantially similar.
In other words, an employer cannot simply give away your job or demote you because your maternity leave is inconvenient for them, or because they decide they prefer your maternity leave replacement as an employee.
This ‘return-to-work guarantee’ applies regardless of how long you’ve worked with the employer prior to your due date.
Irish law also prohibits your employer from discriminating against you because you are pregnant. An employer can’t take “adverse action” against you on the grounds of pregnancy, breastfeeding or family responsibilities, or treat you “less favourably” than other employees because you are pregnant.
If you think your employer has breached your rights, you can take action to enforce them legally through the Workplace Relations Commission.
So, what other things can you do?
Practically while on maternity leave you should try and stay in touch with your workplace. Be more in sight and in mind. Arrange a meeting with the boss and your work colleagues to introduce your new arrival. Keep in touch to see how your role’s going and how your team’s going, how your replacement’s getting on. If you’re able to, keep in touch face to face, rather than relying on email or a phone call.
Plan ahead by taking notes
Document any conversations around your maternity leave and your job as soon as possible preferably in a diary. Often clients email themselves so that these notes are date stamped. If you have a suspicion, or there’s history of unfair treatment at your workplace, the first thing you should do is to take careful notes of all your conversations at work regarding your leave.
You should also follow up on any conversations you’ve had with an email confirming the contents of those meetings.
Creating a paper trail in this way can help you make out your case later, if needed.
Know the difference between sham and genuine redundancies
If you are made redundant, it can be hard to prove the redundancy is a form of discrimination.
It can be legal for your employer to make your position redundant while you’re on maternity leave but only if it’s a “genuine” redundancy, and as long as the employer takes certain steps first.
A genuine redundancy means that your position no longer exists. If your employer has simply decided to hire your maternity leave replacement on an ongoing basis instead of letting you back into your job, or if they hire someone new into your role soon after making you redundant that may be a “sham” redundancy.
That’s very common and is certainly a form of pregnancy discrimination that can be legally challenged.
Even in cases of a genuine redundancy, there are important steps your employer legally has to take.
For example they must consult with you while you’re on leave about restructuring or any other significant changes to the business or organisation that might affect you, have a significant effect on the status, pay or location of your pre-maternity leave job.
If you just haven’t been consulted with whatsoever, then you’re going to have a strong case.
If you are fired while pregnant or on maternity leave, it can feel like lightening is striking twice. Not only have lost your job, you’ve lost it at a particularly financially and emotionally tricky time.
How do you even begin to recover from the trauma? While every situation is different, take a deep breath and consider these seven pieces of advice we gathered from women who’ve been in the same situation.
Accept and confront your emotions.
The first thing you should know is that you are far from alone. One of our Clients, Lucy recalls being “so excited” about returning to work. She had childcare sorted, her work clothes dry-cleaned, and was feeling mentally and physically ready for her new life as a working mother. Lucy recalls that she was let go by email two weeks before she was due to return, and it still “haunts her and gives her anxiety” four years later.
While it may feel incredibly dark for a period, time and support will help you cope with these feelings.
It can be very therapeutic if you can talk to someone else who has been in your shoes. Depending on how you feel and the circumstances, you may need to go beyond the usual embrace of your family and friends. Don’t be afraid to seek out professional help and guidance particularly since postpartum depression can come into play at a confusing and hormonal time.
Many of our Clients also say that taking on a case like this has its own therapeutic qualities. They see it as a service they are doing for themselves (to rebuild their self confidence) but also for other women to ensure that they don’t let this happen again to someone else. The very act of fighting back can be of such great importance to someone who has been so badly treated.
Consider the facts and quickly determine whether you want to pursue legal action.
You may be surprised to find out that your employment can be reorganised while you’re on maternity leave. While it’s illegal for your employer to fire you only because you’re on leave, there are some legitimate reasons your employer can claim your terms of employment were changed.
If you do feel you have been a victim of pregnancy discrimination, you should consider taking legal action your former employer. The statute of limitations on this type of employment claim is just six months, so be sure not to delay for too long if you are interested in pursuing a case.
You should gather all of the information you have to show objective evidence of prejudice for a solicitor to review. However, be careful, if you receive any severance or settlement, you will in all likelihood be asked to agree to waive your right to take legal action.
For example, our Client Jenny* was a customer services rep in a large call centre. She was dismissed while six months pregnant. Her employer offered her a small settlement when she threatened to sue, but it came with a requirement that she agree to confidentiality and full and final settlement of any claims she had against the Company. If something similar happens to you, be sure to read the fine print very carefully and take legal advice before signing.
Negotiate your severance or exit package, if possible.
If you are offered a severance package, carefully examine its terms. How much are you being paid? Will it cover your maternity leave (if you haven’t taken it yet)? Because it’s unlikely that you will be able to get another position before your baby is born, you should look for as much as possible from your former employer. While you may not receive everything you request, you are setting the parameters for the discussions. Put your pride aside, you and your baby will need all the money you can get.
What about a reference?
Depending on the nature of your dismissal, your employer may be happy to write you a letter of recommendation or serve as a referee. This is particularly true if you are dismissed due to no fault of your own beyond working in a restructured organization, for example.
Depending where you are in your pregnancy or maternity leave, the gap created in your CV may be longer than it would otherwise typically have been, so it can be important.
We tend not to attribute too much importance to a reference though. In the modern world references are not anything like as important as they were in previous years. Also, it is very difficult to control what is said in an oral reference and so what you get in writing may be very different to what is said in a phone call. This is usually as good a reason as any to resolve a dispute by compromise or settlement in that this gives you the best possibility of ensuring that the bridges are not entirely burnt between you.
Be conscious of your interview timing and the negotiation implications.
Don’t let being pregnant dissuade you from pursuing a job search. If that’s what you want (or have) to do, it may be harder than usual but there are success stories. For example, Maeve, a client of ours, interviewed at her current job while five months pregnant. She got the job. Legally you don’t have to disclose anything about your pregnancy and it is unlawful for them to ask. But of course, it is always going to be more difficult and if an employer wants to deselect you they will find a way.
If you are very far along in your pregnancy, you may have to decide fairly quickly how soon you are willing to work again if you are offered a new job. You may want to wait until after your baby arrives to begin looking for work if you plan on taking a longer absence since your prospective employer may not be able to wait several months for you to come on board. Or, you will have to negotiate some sort of arrangement for part-time or phased in work if that’s what you’re looking for. For others, finances may mean taking a more limited or almost no maternity leave. Regardless of your situation, be prepared to negotiate and ask for what you need because you are in a non-standard situation.
Examine your finances and make a plan.
There is going to be a period of time where you don’t have any income over the statutory social welfare payments. Be cognizant of your expenses and budget accordingly. You are in a vulnerable position, so keep a close eye on your savings. But remember, this won’t last forever and you can get through this. Just think of the satisfaction you will have when you see your employer being subjected to cross-examination and having to explain their actions to an adjudicator.
Try to see the silver lining.
Being let go during your maternity leave is of course shocking and upsetting, at first. But that passes and you can set your mind to other priorities. Consider working for yourself and imagine a life without a boss. Become the boss. While it’s never easy to be fired, it can be particularly hard when it happens during this time of your life. Whether it’s fair, discriminatory or you’re simply in the wrong place at the wrong time, your ego may not recognize the difference. Feeling bruised and embarrassed for some time is natural but remember that you will in all likelihood land on your feet!
Know where to file a complaint
So, you’ve gathered as much written evidence as possible, and you’re pretty sure your employer hasn’t honoured your return-to-work guarantee or has otherwise discriminated against you. Where should you start proceedings?
Claims of this type are submitted via the Workplace Relations Commission website www.workplacerelations.ie. There is an online form and you fill in your details, those of your employer and set out what claim you intend to make. This is the first step in the process, but it is also a crucial one. We have come across many occasions where this form has been incorrectly completed which has resulted in claims being prejudiced significantly meaning that claimants don’t get their fair redress on a technicality. For example, it is crucial that the correct identity of the employer is set out in this form. Often people don’t realise that they were in fact working for some obscure company and not the company they assumed was their employer. Unless the correct company is identified on the initial form, employers can at times wriggle out of their responsibilities.
In order to properly draft your claim, it is important that you set out all the relevant details and circumstances surrounding your case. It is important that you provide the correct full name and address of your employer and the full address of the place you worked, if different. If you are unsure about the correct name or address of your employer, you should check your pay slips and P45 or P60. In addition, when bringing a discrimination claim, you may need to identify individuals at work you believe have been responsible in some way for the discrimination you have suffered. In bringing a claim for Discrimination under the Employment Equality Acts you can also serve a questionnaire on the Respondent. It is important that you reserve your rights to supplement your claim if there are any questions you think should be included on the form which could help obtain information to support your claims and assess the merits of particular aspects of your claim.
But the WRC is not for the faint hearted!
You see in theory the WRC was supposed to level the playing field, make everything run more smoothly and more efficiently but my strong view is that the process has simply been changed to suit employers. Employers are still turning up fully armed with legal representation including at times barristers both junior and senior counsel. Of course, because the Claimant can’t afford such representation, they are often left fighting a losing battle from the outset. You see, the WRC can’t award costs and so a Claimant will often find it difficult to find a lawyer to represent them without paying a large retainer. I know of one couple who used a boutique Dublin firm to process a Gender Discrimination claim for them and the total professional fees charged came to in excess of €125,000. And they paid those bills as they arose. In another claim under the Protection of Employees (Fixed Term work) Act a client was invoiced over €75,000 for a two-day case in the old Rights Commissioner service.
We know of solicitors who won’t take on employment cases because of their complexity. We have come across many who aren’t so self-aware who have simply led their clients down a blind avenue, oblivious to the dangers.
In the new regime you can no longer sit back and wait for the hearing. Written submissions are now required at the front-end. You can no longer “wing it” as many solicitors, Trade Unions or HR representatives have done in the past.
That was under the old system and recent changes to the employment law landscape have made the claims process more complicated. Although the new system was set up to make things more streamlined the effect has been in our experience that less claims are successful and the awards made are far lower. In fact in 2016, 88% of the awards made by the WRC were for less than €10,000. That’s pretty low considering about 25% of cases related to people who either been unfairly dismissed or discriminated against. When I challenged Oonagh Buckley (head of the WRC) on this her argument was that these awards are mainly relating to wages, annual leave and contractual issues. That still means that only 12% of awards are for in excess of €10,000. What that tells me is that unless you know what you’re doing the chances are you are not going to maximise your claim.
So, if you are bringing a Gender Discrimination case of any type in the WRC, here’s some things you need to know as well as some helpful advice and a synopsis of the law and some hints as to what you might face;
Click here for more information.