1. Introduction
Pregnancy-related discrimination is, in Irish and EU law, treated with particular seriousness. Pregnancy discrimination is a form of direct gender discrimination under Section 6 of the Employment Equality Acts 1998 to 2021 and engages parallel protections under the Maternity Protection Acts 1994 to 2004 and the Pregnant Workers Directive (Directive 92/85/EEC).
This article sets out the framework for pregnancy-related discrimination, the operation of the Section 85A burden of proof in pregnancy cases, the parallel protections under the maternity protection legislation, and the practical considerations for employers managing pregnancy-related issues.
2. Legislation and Case Law
Section 6(1) of the Employment Equality Act 1998 (as amended) prohibits discrimination on any of the nine protected grounds: gender, civil status, family status, sexual orientation, religion, age, disability, race, and membership of the Traveller community. Section 6(2) of the Act sets out the protected grounds in full. Section 8 of the Act applies the prohibition to all aspects of the employment relationship including access to employment, conditions of employment, training, promotion and dismissal. Section 14A of the Act prohibits harassment and sexual harassment on any protected ground. Section 74 of the Act prohibits victimisation. Section 85A(1) provides that where, in any proceedings, facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination, it is for the respondent to prove the contrary. The leading authority on Section 85A is the Labour Court’s determination in Southern Health Board v Mitchell [2001] ELR 201, in which the Court held that the complainant must, in the first instance, establish a prima facie case of discrimination before the burden shifts to the respondent.
Pregnancy discrimination is, by reference to the Court of Justice’s decision in Dekker (Case C-177/88) and Webb v EMO Air Cargo (Case C-32/93), a form of direct gender discrimination. No male comparator is required: the very fact of pregnancy-related adverse treatment is, in itself, gender discrimination.
Section 6(2A) of the 1998 Acts makes specific provision in relation to pregnancy and maternity. Adverse treatment by reference to pregnancy, maternity leave or breastfeeding is prohibited.
The Maternity Protection Acts 1994 to 2004 provide parallel protections including the right to maternity leave, the right to return to the same job after maternity leave, and protection from dismissal during the protected period. Dismissal during pregnancy or maternity leave is, save in narrowly defined exceptional circumstances, prohibited.
The Pregnant Workers Directive (Directive 92/85/EEC) requires Member States to provide for protection against dismissal during the period from the beginning of pregnancy to the end of maternity leave. The Directive has been implemented in Irish law through both the 1998 Acts and the Maternity Protection Acts.
3. Decision
Pregnancy discrimination cases before the WRC arise in a number of typical fact patterns: dismissal during pregnancy or maternity leave; failure to renew a fixed-term contract during pregnancy; redundancy selection during pregnancy or maternity leave; failure to provide reasonable workplace adjustments during pregnancy; and failure to return the employee to the same job after maternity leave.
The Section 85A burden of proof framework operates particularly favourably to complainants in pregnancy cases. Where the adverse treatment occurs during pregnancy or within a short period thereafter, the temporal connection alone may suffice to establish a prima facie case.
The Section 85A burden then shifts to the employer to demonstrate that the adverse treatment was not by reference to pregnancy. The standard of proof is high: the employer must affirmatively demonstrate that the treatment would have occurred regardless of the pregnancy.
The interaction with the Maternity Protection Acts means that a complainant may have parallel complaints under both regimes. Practitioners typically advise pursuing complaints under both Acts to ensure comprehensive coverage of the relevant facts.
4. Takeaway
Pregnancy discrimination is among the most strongly protected categories of equality complaint. Adverse treatment by reference to pregnancy is, in most cases, indefensible.
For employers, the practical advice is to handle pregnancy-related issues with particular care. Any decision affecting an employee during pregnancy or maternity leave should be documented, should be supported by an evident non-pregnancy-related rationale, and should be capable of withstanding scrutiny under the Section 85A framework.
Employers should also be alert to the parallel protections under the Maternity Protection Acts. Dismissal during pregnancy or maternity leave is, save in narrowly defined exceptional circumstances, prohibited regardless of the underlying merits.
For employees, the practical advice is to seek legal advice early if adverse treatment is suspected during pregnancy or maternity leave. The combination of statutory protections is strong and the WRC has shown a willingness to make robust awards in pregnancy-related cases.
5. Further information
This article was prepared for informational purposes only. For further advice, please email enquiries@crushell.ie or contact the offices of Crushell & Co Solicitors.
6. About Crushell & Co
Crushell & Co is a specialist law firm focused on protecting and advancing the rights of employees in Ireland. We offer a nationwide service, advising individuals on a wide range of legal and regulatory issues arising at work, including employment law, employment immigration and workplace accidents and injuries.
We help employees understand their position and options by translating complex legal issues into clear, practical advice. Our approach is tailored to each client, ensuring that our strategy is aligned with their personal and professional circumstances.
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