1. Introduction
Section 23 of the Maternity Protection Act 1994 provides for the suspension of dismissal during the protective period. The provision creates a near-absolute prohibition on dismissal during maternity leave and connected absences, with limited exceptions.
This article addresses the Section 23 protection, the scope of the protective period, the limited exceptions, and the practical implications for both employers and employees.
2. Legislation and Case Law
Section 23 of the 1994 Act provides that, where notice of dismissal is given or extension of probation, training or apprenticeship is provided for during the protective period, the notice or extension is void and of no effect. Any dismissal effected during the protective period is, in general, unlawful.
The protective period extends from the date the employer becomes aware of the pregnancy to the end of any additional maternity leave. The period includes the duration of pregnancy, maternity leave, additional maternity leave, and breastfeeding-related absences.
Section 23 is not absolute. Where there is no connection between the dismissal and the pregnancy or maternity – for example, a dismissal for gross misconduct unrelated to the pregnancy – the dismissal may be lawful, but the threshold for justification is high.
Directive 92/85/EEC on the safety and health of pregnant workers requires Member States to take the necessary measures to prohibit the dismissal of workers from the beginning of pregnancy to the end of maternity leave, save in exceptional cases not connected with their condition. The Directive informs the interpretation of Section 23.
Dekker v Stichting Vormingscentrum voor Jong Volwassenen (C-177/88) established that less favourable treatment of an employee on grounds of pregnancy is direct sex discrimination, without the need for a comparator.
3. Decision
WRC and Labour Court decisions on Section 23 have applied the provision strictly. Dismissals during the protective period are, as a rule, found to be unlawful. The exceptions are narrow and require specific justification.
On the scope of the protective period, the Adjudication Officer has held that the period begins when the employer becomes aware of the pregnancy. Notification by the employee is the typical trigger; constructive knowledge may also suffice in appropriate cases.
On the exceptions, the Adjudication Officer has held that the burden is on the employer to demonstrate that the dismissal was unconnected with the pregnancy or maternity. Mere assertion is not sufficient; contemporaneous evidence is required.
Where the dismissal is found to be unlawful, the employee has remedies under the Maternity Protection Acts, the Unfair Dismissals Acts, and the Employment Equality Acts. The remedies are cumulative in some respects but the employee must elect a primary route.
4. Takeaway
For employers, the Section 23 protection is a near-absolute prohibition on dismissal during the protective period. Any contemplated dismissal of an employee in the protective period should be subject to specific advice and should be supported by contemporaneous evidence of grounds unconnected with the pregnancy or maternity.
The protective period extends beyond the maternity leave itself. Employers should be alert to the continuing protection in respect of breastfeeding-related absences and the period of additional maternity leave.
For employees, the Section 23 protection is among the strongest in Irish employment law. Practitioners should examine the timing of any dismissal in relation to the protective period and should plead the Section 23 protection where applicable.
Practitioners should also consider the parallel routes of complaint under the Unfair Dismissals Acts and the Employment Equality Acts. The Employment Equality route does not require minimum service and may produce a larger award.
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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