A nurse who said she was denied a permanent contract because she was pregnant has won over €56,000 for maternity discrimination after her former employer and its lawyers abandoned a maternity rights hearing over how the name of the firm was filled out on the complaint form.
The award, worth two years pay to the worker, was set at the maximum of the Workplace Relations Commission’s (WRC) jurisdiction under the Employment Equality Act 1998, on the basis that the employer had failed to put forward any argument that it should be “anything less”.
In her complaint, nurse Tina Mary Lukose, who was represented by the Irish Nurses and Midwives Organisation (INMO), accused Riada Care Ltd, trading as Glenashling Nursing Home, of discriminating against her by failing to offer her a permanent contract when after her fixed-term contract ran out in August 2022.
She told the tribunal she had been pregnant since January that year and that she had already told her employer when she asked in July to book annual leave that September.
However, her position was that it was only when she made this approach that Riada Care informed her it did not plan to offer her a permanent contract when her temporary contract expired on 4 August that year.
Ms Lukose told the WRC that this was the opposite of the arrangements made for “every other employee that she was aware of whose fixed-term contract expired”.
Contract extension
In “desperation”, she asked for an extension to her contract to bring her up to the start of her maternity leave, and received a new fixed-term contract which ran until the start of October 2022, when her employment with the firm ended, she added.
“She ultimately had no choice but to accept this offer given her advanced pregnancy at the time and her view that it would be difficult to source alternative employment elsewhere,” her INMO rep Bernadette Stenson submitted.
When the case was called on by the WRC on 30 November last year, Claire Bruton BL, appearing for the company instructed by PB Cunningham & Co argued Riada Care was not properly on notice of the complaint.
This was on the basis that when the worker’s complaint form was filled out, the box marked “Name/Company” was filled in with “Glenashling Nursing Home” and the “Trading As” box contained “Riada Care Limited”.
Ms Bruton submitted that as the Glenashling Nursing Home was “not a legal entity” the complaint was “invalid” and the adjudicator, Breiffni O’Neill, had no jurisdiction.
Ms Stenson applied to amend the complaint form, but Ms Bruton said the WRC had “no such power of amendment” under the Employment Equality Act.
Mr O’Neill proposed to press on with the hearing and reserve his position on the matter, but after taking instruction, Ms Bruton said her side was withdrawing from the hearing.
“Prior to their departure from the hearing room, I informed Ms Bruton BL once again that I was reserving my position on whether or not to amend the name of the respondent and would be proceeding with the hearing,” wrote Mr O’Neill in his decision.
He took the view that as the complaint form had referred to the worker being “discriminated against by her ex-employer Riada Care Limited T/A Glenashling Nursing Home” he was satisfied to name that entity as the respondent to the case.
He wrote that the onus was on the company to rebut the inference of gender discrimination raised by Ms Lukose.
“As the respondent did not present any evidence at the hearing, they were unable to discharge the burden of proof,” he wrote.
He noted that the Labour Court’s view in a previous case was that pregnancy-related discrimination was “among the most egregious breaches of employment law”.
The same piece of case law, he said, also supported a maximum-jurisdiction award of compensation in the absence of any argument from the employer for a reduced amount, he noted.
Mr O’Neill awarded Ms Lukose compensation of €56,160, 104 weeks pay, for the discrimination.
