McGurty v GMK Construction: [2023] TRE 65

Mr McGurty started working for GMK Construction (the Company) on 17^th October 2022.  His employment progressed without incident until February 2023.  On 3^rd February 2023, Mr McGurty’s partner posted a message on Facebook seeking advice about paternity leave.  Mr McGurty believed that Mr Kelly (the owner and directing mind of the Company) had seen the post, especially because he had ‘liked’ the post.  Mr McGurty argued that the Company subsequently dismissed him later that day, just after seeing the post, to avoid the costs of paying him paternity leave.

The Company, on the other hand, held that Mr McGurty was dismissed due to the poor quality of his work. The Company claimed that Mr McGurty had let it down on a high value project (which happened over one year prior to the date that Mr McGurty was dismissed) and or had a poor attitude.  The Company also denied that the Facebook post played any role in the dismissal.  It stated that other employees have previously been given paternity leave and or bonuses when they had children.

The Tribunal did not accept the Company’s explanation that the dismissal was due to poor work performance.  It found that, if performance had been a genuine issue, Mr McGurty would have been dismissed much earlier.  The Tribunal also noted the fact that the Company had asked Mr McGurty to work on the day he was dismissed.

The Tribunal found that the dismissal was motivated by Mr McGurty’s partner’s pregnancy and the Company’s concern about paying for paternity leave.  The Tribunal concluded that this amounted to direct discrimination under the Discrimination (Jersey) Law 2013.  It noted that the Discrimination (Jersey) Law 2013 does not require the protected characteristic forming the basis of the alleged act of discrimination to be a characteristic of the complainant, but rather states ‘because of ‘a’ protected characteristic’.  It further noted that the Discrimination (Jersey) Law 2013 contemplates a circumstance or possibility that a subject of a discrimination claim predicated on the protected characteristic of either maternity or pregnancy could be a man.

This case highlights the that a person can be discriminated against, even if they do not have one of the protected characteristics.  The key consideration is whether the alleged discriminatory act was committed ‘because of a protected characteristic’.

Full Judgement Here