Courts

Solicitor awarded €30,000 for discriminatory dismissal from Co Kerry office while pregnant

WRC hears Orla Howe told firm of ‘heightened anxiety’ about working at time but attended wedding days later

08/09/2022 Lansdowne House, the offices of the Workplace Relations Commission in Ballsbridge, Dublin.. Picture Colin Keegan, Collins Dublin

Stephen Bourke
Thu Jul 6 2023 - 13:56

A solicitor who told her boss she had “heightened anxiety” about working in a Co Kerry law office while pregnant, but later admitted she was dancing at a wedding three days after saying so, has won €30,000 for discriminatory dismissal.

The Workplace Relations Commission (WRC) found there was a “stark” closeness in time between the complainant notifying her boss of her pregnancy and his decision to address the firm’s financial position.

Orla Howe secured the compensation order under the Employment Equality Act 1998 on foot of her complaint against solicitor Colm Kelly, trading as HCA Law.

The commission rejected the employer’s defence that the dismissal was a genuine redundancy, noting that the office’s headcount remained the same because another solicitor was hired when Ms Howe was let go.

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However, the tribunal found that Ms Howe had failed to establish a breach of the European Pregnant Workers’ Directive by refusing to address her concerns about Covid-19 safety in the office.

At a hearing in May, Mr Kelly said the conveyancing work Ms Howe did had dropped off because of the pandemic and his firm’s annual profits had plunged from €150,000 to €30,000.

Excluded from meetings

Ms Howe told the tribunal that Mr Kelly stopped new files going to her and excluded her from meetings before putting her on notice of redundancy. These claims were denied by the respondent, but were cited as evidence pointing to a pre-determined decision.

“My anxiety is heightened, particularly in circumstances where I have a high-risk pregnancy,” Ms Howe told her employer in an email on August 17th, 2021.

The tribunal heard Mr Kelly went to seek the advice of his accountant in September 2021 before then placing Ms Howe on notice of a redundancy risk the same month and giving notice of termination on November 19th of that year.

Ms Howe’s August email was raised in cross-examination by the respondent’s lawyer, David Gaffney, who asked: “You were uncertain about going to the office [but] did you attend a wedding on August 20th?”

Dancing

Ms Howe said at first she knew she had been invited to two weddings that year and only attended one, but after consulting with her partner, who accompanied her at the hearing, she said she had been at a wedding on that date.

“All the Covid guidelines would have been observed,” she said.

“A wedding was safer than Mr Kelly’s office, working with a couple of people?” Mr Gaffney asked.

“I’m not saying either. I went to the wedding, I wasn’t mixing and mingling,” Ms Howe said.

“Did you dance that night?” Mr Gaffney asked.

“There was dancing, yes,” she replied.

Adjudicating officer Marie Flynn then asked the complainant directly: “Did you dance?”

“Yes,” Ms Howe said.

Mr Gaffney put it to her that the office environment would have been safer than a wedding and that it would “look odd” to write to her employer two days later raising concerns about pandemic safety.

“I have no comment on it, Mr Gaffney,” the complainant replied.

Ms Howe’s solicitor, David Pearson, said the consultancy process “was a sham” and he alleged that Mr Kelly made his decision when he heard of the pregnancy.

In her decision, Ms Flynn said it was clear to her that Mr Kelly was “aware of his financial situation” as soon as the accounts for the financial year ending March 2021 were produced two months later.

Head count not reduced

She said it was “somewhat surprising” that he then waited until September to seek the advice of his accountant and noted a “stark” closeness in time between his decision to address the financial position in September and Ms Howe’s email notifying him of her pregnancy a month earlier.

Ms Flynn noted further that Mr Kelly had failed to consider alternatives to redundancy for Ms Howe, and “did not actually reduce his head count” by terminating her employment. “Instead, he recruited a new member of staff,” she found.

“It is well established both on the European and national level that an employer must show that the dismissal was on exceptional grounds not associated with pregnancy,” Ms Flynn wrote.

She found Ms Howe had made out a prima facie case of discriminatory dismissal on the gender ground and that the reasons for dismissal cited by her employer “do not amount to exceptional circumstances”.

However, she rejected the complainant’s contention that the firm was in breach of the European directive on the health and safety of pregnant and breastfeeding workers.

Ms Howe’s evidence was that she was “never compelled to attend the office” and could work from home and that a failure by the firm to carry out a health and safety audit had no “material impact” on the complainant’s wellbeing, Ms Flynn said.

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