05 Jun Discrimination During Maternity Leave

As we approach a period of restructuring and potential redundancies due to the implications of Covid 19, employers should not forget that employees who are on maternity leave are entitled to return to the position held prior to going on maternity leave, or an equivalent post, on terms and conditions that are no less favourable. The decision reached in a recent equality case ADJ-000231830 serves as an useful reminder of how employees on maternity leave are protected.

The Complainant had joined in April 2017 as Head of Human Resources reporting to the MD and returned from a period of maternity leave in June 2019, that had commenced in June 2018. The Complainant claimed she had been discriminated against on grounds of gender and family status, as the role available to her on return from maternity leave was substantially different to the role carried out prior to her period of maternity leave. The Complainant supported her claim with evidence that her responsibilities had significantly reduced both in terms of functions and international Company sites, and she no longer was a member of the senior management team.

The Complainant confirmed she was made aware during her period of maternity leave that a new HR role was being created and that she would be reporting into this role, but said she was not made aware of any change to her functions/responsibilities, and she did not receive any clarification on her position within the senior management team when she asked. The Complainant said she was not offered the opportunity to apply for the new role, and said she believed her career prospects were now limited with the significant change to her responsibilities.

The Respondent outlined that their needs had changed just before the Complainant went on maternity leave as the number of employees being serviced had doubled to 300. Whilst it was acknowledged that the Complainant was not specifically told that she would no longer be on the leadership team, they contended that a change of reporting line did not constitute a material change to her role. The Respondent also stated that the Complainant did not have the skills set for the new role, which required the ability to generate a revenue stream.

The Adjudication Officer found that the Complainant had returned to a significantly altered role after a period of protected maternity leave, and had raised a valid inference of discrimination on grounds due to her gender and her period of maternity leave, in respect of why she was unable to return to her former role, or a role with a similar level of responsibility. Whilst it was accepted that the Respondent’s needs had changed, the Adjudication Officer determined that the Complainant was not given the opportunity to be considered for the new role, and that her status as the most senior HR employee within the leadership team was removed without any consideration, due to her changed reporting line and reduced supervisory capacity.

The Complainant was awarded €41,370 (six months remuneration) for the distress resulting from the discrimination.

There are some useful learning points from this case in how employees on maternity leave should be dealt with, particularly if there is any form of re-organisation and restructuring taking place.

Firstly, it is worth being reminded of the clear right under European and National legislation for a woman on maternity leave to return to her job or an equivalent post, on terms and conditions which are no less favourable, that would have been applicable to the employee if she had not been absent from work. Furthermore, equality legislation indicates that discrimination on grounds of gender will occur, if a woman is treated less favourably due to her pregnancy or maternity leave, than another employee is, has been or would have been treated.

Employers must ensure that employees on maternity leave are fully consulted on with regard to any proposed organisatonal changes, that will impact them, and that they are given an opportunity to apply for any revised role that may be determined to be required.

Furthermore, any alternative role that is offered must be suitable in terms of seniority and overall scope.