EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2016-160
A Former Retail Product and Salesperson
(Represented by Lorna Lynch BL,
instructed by Miley & Miley Solicitors)
A Clothes Wholesaler
(Represented by ESA Consultants)
File Reference: EE/2013/682
Date of Issue: 21st December 2016
1.1 This is a claim by the Complainant that she was subjected to discrimination including dismissal owing to her pregnancy on the grounds of gender, family status and disability pursuant to Section 6(2)(a), (c) and (g) and 8(6) of the Employment Equality Acts (hereinafter also referred to as ‘the Acts’), and sexual harassment in the course of her employment with the Respondent contrary to Section 14A of the Acts.
1.2 Through her Solicitors, the Complainant referred a complaint under the Acts to the Director of the former Equality Tribunal, received on 20th December 2013. On 15th September 2015, in accordance with his powers under Section 75 of the Acts, the Director delegated the case to me, Aideen Collard, an Adjudication / Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts, on which date my investigation commenced. Submissions had been sought and received from the Parties. As required by Section 79(1) of the Acts and as part of my investigation, I heard this case over two days on 23rd September 2015 and 11th December 2015. Both Parties were represented and in attendance along with a number of witnesses. All written and oral evidence and submissions presented including documentation submitted before and during the hearings have been taken into consideration when coming to this decision. I also indicated that I would be relying upon the key statutory provisions and case law on the area.
1.3 This decision is issued by me following the establishment of the Workplace Relations Commission on 1st October 2015, as an Adjudication Officer who was an Equality Officer prior to 1st October 2015, in accordance with Section 83(3) of the Workplace Relations Act 2015.
2. SUMMARY OF THE COMPLAINANT'S SUBMISSIONS & EVIDENCE
2.1 With a background in clothing retail and following a successful interview process, the Complainant commenced a two-year fixed term contract with the Respondent, a Clothes Wholesaler, on 27th May 2013 as a Retail Product and Salesperson. She had left a permanent position to take up the contract. She reported to the Head of Retail in Ireland, Ms AB. Her salary was €32,000 gross per annum and attracted a guaranteed bonus of €5,000 for the first 12 months of her employment payable at year end (July).
Claim of Sexual Harassment
2.2 The Complainant confirmed that her work required flexibility, travel and overnight trips which were usually booked by her Manager, Ms AB. Ms AB routinely booked a double-room to share with the Complainant, which occasionally required sharing a double bed. This arrangement made her feel uncomfortable as she considered this intrusion into her privacy to be intimidating particularly as Ms AB was her Manager and was also gay. As she had just commenced employment, she was reluctant to make a formal complaint but when she shared her concerns with another staff member, it was apparent that other employees were aware of this inappropriate practice but no steps were taken by the Respondent to address the issue. The Complainant said she had not been informed of Respondent’s corporate policy of doubling up on accommodation to save costs with the option of a single on the basis that she paid the difference. She also felt that in the course of her employment, other staff members had been permitted by Management to make inappropriate comments about her body shape. It was submitted that this amounted to sexual harassment within the meaning of Section 14A of the Acts. As other employees had raised an issue with the room-sharing practice, it was submitted that the Respondent cannot rely upon a defence under Section 14(2)(A) of the Acts, that it took reasonable steps to prevent such treatment.
2.3 When asked how regularly this occurred, the Complainant identified two occasions during the course of her employment. When put to her, the Complainant denied being furnished with and/or made aware of the Respondent’s corporate policy of doubling up on accommodation to save costs as per circulars to all staff furnished at the hearing. She admitted that she had never raised the issue as a grievance with Ms AB or Ms CD, the Country Manager, but said she had mentioned it to other female members of staff.
Claim of Discrimination including Dismissal on grounds of Gender, Family Status and Disability
2.4 The Complainant gave evidence that during her second interview, Ms CD had made inappropriate enquiries regarding her family status. Once appointed, she said that as she was in a new role and dealing with a new system, she had expected more training but only received a half day of training with the remainder being on the job. The person she had replaced was already busy in her new position. Nonetheless, she was dedicated to her position, came up with new ideas and received positive feedback from store managers and personnel. Whilst she recalled having a few issues with Ms AB, they were not of any significance. Whilst she recalled having weekly catch-up meetings with Ms AB and Ms EF (her counterpart in the same department who was also pregnant at the same time) to discuss any work-related issues arising, she was never subject to any performance reviews. She said that the first time she saw some of the issues raised by the Respondent in relation to her performance was in their submissions. The only meeting she could recall with Ms AB of any relevance to these issues was approximately six weeks into her employment where she had informed Ms AB of some ongoing personal issues but did not seek any time off. During that meeting, Ms AB had said that she got the impression that she preferred women’s wear to children’s wear and asked her to think about whether she wanted to move but the Complainant said she wanted to remain where she was. She was also aware that the staff member she had replaced had not been getting on well in her new role and wanted to move back to children’s wear.
2.5 The Complainant confirmed that mention of her first solo trip came quite early in her employment and following a work-related trip with Ms AB to Denmark in August 2013, Ms AB said that it was well within her capabilities to make the next trip alone which was booked on 12th November 2013, scheduled to take place on 9th-12th December 2013. On 13th November 2013, she accompanied Ms AB to a store opening down the country and again was required to share with Ms AB. She had recently discovered that she was pregnant and felt that she had to disclose this fact to AB given the accommodation arrangements and the fact that she was suffering from ‘morning sickness’. This was made worse by hormones she had been prescribed having previously suffered a miscarriage. Upon informing Ms AB of her pregnancy, she had congratulated her and said she could stay in the hotel if she did not feel like going out. As she was in the early stages of a high-risk pregnancy, she asked Ms AB to keep this confidential and Ms AB assured her that she would only advise HR and Ms CD of her pregnancy. At the time of revealing her pregnancy, she did not believe that there would be any issue with passing her probation.
2.6 The following week from 18th-22nd November 2013, the Complainant was suffering from severe morning sickness and was on certified absence from work, updating Ms AB on a daily basis as to her condition and likely return to work. She returned to work on 25th November 2013 and reported to Ms CD as Ms AB was abroad. Ms CD instructed her to get as many sales as possible during that day. At around 4.30pm that afternoon, Ms CD met with the Complainant to advise her that her probationary period expired on 27th November 2013 and she was not going to be retained. The Complainant asked whether the decision to let her go was owing to her pregnancy but Ms CD informed her that it was due to performance issues. Ms CD asked her to return the company car, phone and laptop immediately. As she did not have the car, she agreed to drop it back the following Monday. She was shocked and broke down in tears as did a number of other female staff who sought to comfort her. She was upset at the timing just before Christmas. She was not afforded any appeal. She received a P45 with a date of cessation of 25th November 2013. She was paid in lieu of a week’s notice but was not paid the guaranteed bonus of €5,000 or part thereof. She never received any written reasons for her dismissal and did not believe there was any point in pursuing the matter further directly with the Respondent. A pregnancy risk assessment was never conducted given the short period between notice of her pregnancy and her dismissal and as such, did not form part of the complaint herein. After the termination of her employment, the Complainant found temporary employment with a baby care chain before taking maternity leave.
2.7 The Respondent’s Representative questioned the Complainant putting the Respondent’s position to her. In particular, it was put to her that she had volunteered information regarding her marital status during her interview with Ms CD. It was also put to her that she had received more than the minimal training contended. She denied that she was more interested in women’s wear than her position in children’s wear. A list of specific performance related issues were put to her including the fact that as she had erroneously booked a flight under her maiden name, this had to be rearranged at a cost to the Respondent. She said that she had apologised at the time and denied being made aware that it was a big issue. Pricing issues and issues with orders not being placed properly or at all were also put to the Complainant in respect of which she replied that there would always be a good reason and/or would have been beyond her control i.e. low stock. She said that the issues now being raised as performance issues were routine workplace issues which were always sorted out. She was shown documentation in support of such performance issues for the first time at the hearing. This documentation was general in nature relating to stock orders and pricing and did not make any specific reference to any shortcomings by the Complainant. She accepted that she should have set her email to ‘out of office’ when on annual leave and said this was a technical error. It was also put to her that she had not sent a critical list on 17th October 2013 despite reminders. When it was put to her that she had attended meetings without the required information, she denied being unprepared, and stated that if information was missing it was because she was waiting on it. In relation to an assertion that she refused to make store visits, she said that she was required elsewhere. She denied being critiqued and admonished at the weekly meetings. She said that Ms EF, her counterpart, was usually present at these meetings and it would not have been possible to discuss any performance issues in her presence if any had arisen. She denied that she had ever received a verbal caution. The Respondent’s Representative confirmed that there were no minutes of meetings or other records which could be put to the Complainant and said this was explained by the Respondent’s flat management structure. When it was put to her that Ms AB had contacted HR in Head Office regarding her performance, she said she was unaware of same. Emails furnished in support of this contention queried the date when her probation was up but did not refer to any performance issues.
2.8 Another former employee of the Respondent, Ms DG, gave evidence on behalf of the Complainant. She confirmed that although she was based in another department, she worked alongside the Complainant and confirmed she had enjoyed a good working relationship with the team. She also confirmed that at the material time there had been huge pricing problems with their main branch in Europe and there could be many reasons for pricing issues. She was not aware of any issues with the Complainant until the day she was dismissed. She gave evidence of various conversations which were objected to on behalf of the Respondent. She could not recall any discussion regarding performance issues with the Complainant.
2.9 It was submitted on behalf of the Complainant that all the evidence tended to support her contention that she was not dismissed for performance related reasons and her dismissal was due to the fact that she was pregnant and had been absent due to pregnancy related illness. The first time that the Respondent raised any issues regarding her performance was when Ms CD informed her of her dismissal on 25th November 2013. The fact that another member of staff in her department, Ms EF, was also pregnant with similar dates and would be off work at the same time was a contributing factor in the Respondent’s decision. The alleged poor performance is entirely at odds with the fact that as at 12th November 2013, the day before the Complainant disclosed her pregnancy, Ms AB was sufficiently confident in her ability to send her unaccompanied abroad on the next trip. In dismissing her, the Respondent had ignored the terms of her contract and its own policies and procedures contained in the Employee Handbook. In relation to Performance & Salary Reviews, her contract provided: “Your performance shall be formally reviewed on a weekly basis during the course of your employment with the Company. However, management reserves the right to conduct performance reviews on additional features. In the event that your performance review is not satisfactory, the Company will offer you assistance in your efforts to achieve the objectives. However, in the event of serious underperformance and/or repeated performance failures, the Company shall instigate the disciplinary process and potential sanctions may be issued against you depending on the stages of the process as outlined in the ‘Disciplinary Process’ section of the Employee Handbook.” A six month probationary period clause also provided: “The Company reserves the right to extend the probationary period for a further three month period if in the opinion of management you have not attained the standards required or if you have received a disciplinary warning during your probation term. Furthermore, if having joined the Company you are sick for any period that prevents us completing a full evaluation on your competence, ability or suitability the Company reserves the right to extend probationary period.” In breach of her contract, the Complainant’s performance was never reviewed nor was she made aware of any performance issues prior to the date of her dismissal, either verbally or in writing, and her weekly meetings never related to performance issues. Furthermore, the Respondent never contemplated an extension of her probation period as an alternative.
2.10 It was further submitted on behalf of the Complainant that it is incredible that the Respondent deemed her underperformance to be so serious that it warranted dismissal without any review, warning, assistance or recourse to the disciplinary process. In this respect, she was not afforded the benefit of a stepped or progressive approach in relation to any disciplinary action or indeed to any procedures at all. The timing of her dismissal is particularly indicative of the Respondent’s intentions, falling the day after she had returned from a week of sick leave on 25th November 2013, when her probationary period ended on 27th November 2013. The Respondent never furnished any reasons for her dismissal in writing.
2.11 Detailed written submissions outlining the leading national [e.g. Trailer Care Holdings Limited -v- Deborah Healy (2012) Labour Court EDA 128] and international authorities [e.g . C-177/88 Dekker -v- Stichting Vormingscentrum voor Junge Volwassenen (1990) ECR 1-3841],national [The Employment Equality Acts] and EU law [Art 23 of the Charter of Fundamental Rights of the EU, Directive 2006/54/EE - the Recast Directive & 92/85/EEC - the Pregnancy Directive], in relation to the position of pregnant women in employment were furnished. They have made it clear that since pregnancy is a uniquely female condition, any adverse treatment on the grounds of her pregnancy is direct discrimination on ground of her sex. It was submitted that based upon same, it is abundantly clear that women are to be afforded special protection from adverse treatment, and in particular from dismissal on account of their condition, from the commencement of their pregnancy until the end of their maternity leave. The entitlement to that protection is to be regarded as a fundamental and inviolable right within the legal order of the Union upon which the Courts and Tribunals of the Union must vindicate within the limits of their jurisdiction. It is equally clear that where a pregnant woman is dismissed during a period of special protection the employer bears the burden of proving, on cogent and credible evidence, that the dismissal was in no sense whatsoever related to her pregnancy. The aforesaid decisions along with those of the Labour Court [e.g. Assico Assembly Limited -v- Corcoran EED 033/2003] and the Equality Tribunal [e.g. O’Brien -v- Persian Properties t/a O’Callaghan Hotels] and Directive 92/85 make it clear that women who are pregnant are to be afforded special protection in employment and cannot be dismissed save in exceptional circumstances not associated with pregnancy and such grounds should as a matter of law and good practice be set out in writing. Also of relevance in the context of the appropriate form of redress in cases involving discriminatory dismissal is the decision of the CJEU in Marshall -v- No. 20 Southampton and South-West Hampshire Area Health Authority (1993) IRLR 445.
2.12 Overall, it was submitted that the Respondent’s dismissal of the Complainant the day after she returned from a week’s absenteeism owing to morning sickness, discriminated against her on the grounds of gender, family status and disability. Although a claim in respect of reasonable accommodation pursuant to Section 16 of the Acts had not been expressly made, it was further submitted that the Respondent did not make adequate enquiries so as to understand the Complainant’s illness and had not adhered to the two stage process as set out in Humphries-v- Westwood Fitness Club (2004) ELR 296.
3. SUMMARY OF THE RESPONDENT’S SUBMISSIONS & EVIDENCE
3.1 The Respondent is an international firm with offices throughout the world and a diverse workforce of different genders, family status and sexual orientation. Its policies of equality and fairness in employment and adherence to employee rights are well-established as set out in its employment contracts and staff handbooks. The majority of its staff are of the female gender and regularly take maternity and parental leave and the Respondent also provides pregnancy risk assessments.
3.2 The Respondent vigorously denied the Complainant’s claims herein and although factual background matters are not in dispute, evidence was called conflicting with the Complainant’s account. Firstly, it was contended that it was not the responsibility of the Complainant’s Manager, Ms AB, to arrange overnight accommodation and each individual is responsible for booking their own accommodation and travel arrangements. It is the Respondent’s corporate policy to double up on accommodation to save on costs and a copy of same was furnished. It was contended that it is wholly incredible that any issue could arise from Ms AB’s sexual orientation and she was clearly gravely affronted by these allegations. It was denied that the Respondent was ever aware of the Complainant’s concerns in this regard and nor did she raise any complaint despite being furnished with a handbook containing the grievance procedures. Any other words or conduct amounting to sexual harassment were also strenuously denied.
3.3 It was contended that the Complainant’s employment was terminated within her six month probationary period for performance related reasons and in this respect, Ms AB and Ms CD confirmed the following:
· The Complainant would never have been questioned about personal or family status at her interview. After interviewing the Complainant, Ms AB had been excited about her appointment as it is difficult to find good, experienced people for the Respondent’s growing business.
· However within six weeks of the Complainant’s commencement of employment, on 10th July 2013, Ms AB met with the Complainant to discuss her lack of progress and interest in the job and told her that she needed to improve. Ms AB further advised that if children’s wear was not the area she wanted to work in, she would speak to Ms CD about the possibility of transfer to a women’s brand.
· The Complainant was allowed time to reflect on the issue and it was agreed that when Ms AB returned from annual leave, the Complainant would meet with her to confirm whether she wanted to stay in children’s wear or not and/or to discuss her plans on how to improve her performance.
· Ms AB contended that the Complainant was regularly underprepared for their meetings and confirmed the various other performance issues put to her in questioning as set out aforesaid. Ms CD also confirmed that she had at least seven ‘lates’ during the course of her employment.
· On 22nd July 2013, when Ms AB met with the Complainant, she acknowledged that she was underperforming and confirmed her desire to remain in children’s wear. Ms AB again cautioned that she would have to prove her ability to perform to the Respondent’s standards and role expectations.
· However, soon thereafter on 6th August 2013, the Complainant was unable to take her flight to Denmark as she had erroneously booked it under her maiden name and this had to be rearranged.
· On 25th and 26th August 2013, the Complainant’s team travelled to a country town where she had shared a room with another female colleague which was booked by Ms AB.
· On 15th October 2013, the Complainant travelled to another country town and stayed in her own room by herself, also booked by Ms AB.
· On 7th November 2013, Ms AB contacted the Irish Head Office to address issues with the Complainant’s performance and the options available upon completion of her probationary period.
· On 12th November 2013, a booking was confirmed for the team including the Complainant to travel to Denmark in December and as Ms AB was not due to travel, she was not involved in this process.
· On 13th November 2013, the Complainant, Ms AB and other employees travelled to Clonmel and the Complainant booked the accommodation for the entire group. Ms AB met with the Complainant to address issues with her performance including not completing her tasks satisfactorily and the length of time taken to complete tasks and admonished her continued failures and lack of interest.
· Soon thereafter, the Complainant informed Ms AB that she was pregnant. Ms AB advised her that she would have to inform Ms CD, the HR Manager and the Financial Controller.
· It is strongly denied that the Complainant raised any issues with her pregnancy, had brought to Ms AB’s attention the fact that her pregnancy was problematic, or requested alternative accommodation.
· It is corporate policy for staff to share a double room when away and if they wish to have a single room they are required to request same from management and pay the difference as per the Company policy. Another employee advised Ms AB that she was pregnant and sought to have a single room. This was granted and as a result, the Complainant shared accommodation with Ms AB instead.
· On 15th November 2013, Ms AB met with Ms CD and agreed to speak with the Complainant about her scheduled trip to Denmark in December 2013.
· From 18th-22nd November 2013, the Complainant was out on sick leave. Ms CD met with the Complainant on her return to work on Monday 25th November 2013 and instructed her to undertake several tasks which were not completed. Ms CD discussed the Complainant’s performances with HR and Ms AB and advised that the Complainant’s standards had not improved.
· Ms CD met with the Complainant later that day and advised her that her probation period was due to expire on 27th November 2013 and that the Respondent would not be making her position permanent due to her performance and therefore terminated her employment on the grounds of suitability. The Respondent strenuously refutes that this was the first time she was advised of any issues with her performance which she was aware of since her initial meeting with Ms AB in July 2013.
· Ms AB said that she had discussed the Complainant’s performance issues with HR prior to becoming aware of her pregnancy and would have reminded her of her probation at one of the meetings.
· Ms CD confirmed that formal reviews of the Complainant’s performance were not conducted owing to the Respondent’s flat managerial structure so weekly meetings were used to address any issues. She also confirmed that the Complainant would have received any necessary support and training during her probation period which was used to evaluate and assess her suitability for the position.
· Ms CD also confirmed that during her tenure there had been many staff pregnancies without issue.
3.4 Counsel for the Complainant put it to Ms AB that the alleged performance issues raised were simply not credible as there was not one email referring to same and she was not averse to sending emails. Ms AB also accepted that were no minutes of meetings confirming the performance issues discussed. It was also put to Ms AB that her emails with HR only queried the Complainant’s probationary period and did not refer to any performance issues or options for dealing with any such issues. It was further put to her that there had never been any mention to the Complainant that her job was at risk before her dismissal. Ms AB said that she would have been well aware of the performance related issues from their interactions. It was also put to Ms AB that the Complainant had never previously had sight of the documentation relied upon at the hearing in relation to the pricing issues alleged and that the matters referred to were minor in nature. Ms AB was also challenged about the timing of the Complainant’s pregnancy and her dismissal in respect of which Ms AB said it was “bad luck” that they occurred at the same time. Ms AB admitted that she was not fully aware of the steps to be taken regarding pregnant women but had obtained advice on the matter before finalising the decision to terminate her employment. Counsel also questioned Ms AB in relation to the appropriateness of the hotel room-sharing policy and particularly one that required staff to share rooms with managers. Ms AB confirmed that most hotel rooms had twin beds which were pushed together and the Complainant had never in fact had to share a bed with her. She denied that there had been at least one occasion when the complainant had to share a duvet with her.
3.5 Counsel for the Complainant also challenged Ms CD on the absence of a paper-work trail. She took issue with the fact that the Complainant’s ‘lates’ had first been brought up during her evidence. It was also put to her that performance issues were first being brought up in submissions to justify the Respondent’s position and that prior to her dismissal, the Complainant was wholly unaware that her job was at risk. Ms AB said that she was aware of her obligations towards the Complainant as a pregnant employee and had also sought expert advice before terminating her employment. She accepted that no reasons for the Complainant’s dismissal had been furnished to her in writing. She said there was no point in extending her probation as she was clearly unsuitable for the position. She also referred to the timing of the Complainant’s pregnancy and termination of her employment as “unfortunate”. She also said that the fact that both the Complainant and Ms EF were pregnant at the same time would not have posed a problem in relation to maternity cover and suitable arrangements would have been made.
3.6 Ms EF, an existing employee who was also pregnant the same time as the Complainant gave evidence on behalf of the Respondent. She had been employed with the Respondent for 4.5 years at the material time and also reported to Ms AB. She confirmed that she had not been treated any differently during her pregnancy. She also confirmed that she had never been in the same room on the occasions when Ms AB critiqued the Complainant for her work and was unaware of the pricing issues. However she said she had been aware that the Complainant had been underprepared for meetings. Finally, she confirmed that she was well aware of the Respondent’s hotel room-sharing policy and said she had been accommodated by the Respondent when she had asked for her own room during her early pregnancy.
3.7 Overall, the Respondent denies the Complainant’s claims herein and in particular submits that the Complainant’s employment was terminated at the end of her probation period owing to performance related issues and further, that the decision to dismiss her was wholly unconnected with her pregnancy. Examples of other pregnant female employees including Ms EF not being subjected to similar treatment were cited as a basis for its contention that the Complainant’s employment was terminated for unconnected reasons. It is submitted that the Complainant has not adduced facts constituting a prima facie case of discrimination on the grounds of gender, family status or sexual harassment under the Acts.
4. FINDINGS AND CONCLUSIONS
4.1 The issues for my decision are whether or not the Complainant was subjected to sexual harassment in the course of her employment with the Respondent and furthermore, whether the Complainant was discriminated against on the grounds of on the grounds of gender, family status and disability.
4.2 Section 85A of the Acts sets out the burden of proof which applies to claims of discrimination and as well-established by the Equality Tribunal and Labour Court, requires the Complainant to establish, in the first instance, facts from which discrimination may be inferred. It is only where such a prima facie case has been established that the onus shifts to the Respondent to rebut the inference of discrimination raised.
Claim of Sexual Harassment
4.3 Section 14(A) of the Acts broadly provides that sexual harassment is any “…form of unwanted verbal, non-verbal or physical conduct of a sexual nature.” This unwanted conduct must have the “purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person” and may “consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.”
4.4 Taken at its height, I am not satisfied that the Complainant has adduced evidence of conduct amounting to sexual harassment as defined by Section 14A of the Acts aforesaid. However and whilst understanding the Respondent’s rationale for its doubling-up policy as a cost-saving measure, I am of the view that it was inappropriate to require the Complainant to share a hotel room with her Manager whilst working away and this measure should have been reserved for employees of equal status. In this respect, I accept the Complainant’s evidence that this arrangement made her feel uncomfortable but cannot conclude that it amounted to a violation of her dignity as defined. In her evidence, the Complainant did not identify any other specific words or conduct on the part of the Respondent amounting to sexual harassment. I note that Ms AB felt particularly hurt and personally slighted by this aspect of the complaint and suspect that had it not been brought, this matter would not have been as hotly contested.
Claim of Discrimination including Dismissal on grounds of Gender, Family Status and Disability
4.5 The next issue for my decision herein is whether the Complainant was discriminated against and/or dismissed owing to her pregnancy on the grounds of gender, family status and disability within the meaning of the Employment Equality Acts as contended. The facts adduced must be assessed in relation to the relevant legal provisions. Section 6(1) of the Acts provides: “For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where- (a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the ‘discriminatory grounds’) which- (i) exists, (ii) existed but no longer exists, (iii) may exist in the future, or (iv) is imputed to the person concerned,” In relation to discrimination on the grounds of gender, family status and disability, respectively, Section 6(1)(2) provides: “As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are- (a) that one is a woman and the other is a man (in this Act referred to as “the gender ground”),” and “(c) that one has family status and the other does not (in this Act referred to as ‘‘the family status ground’’),” and “(g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as ‘‘the disability ground’’)” Section 8(6) of the Acts defines discrimination in relation to specific working conditions including dismissal.
4.6 Having considered the detailed factual matrix in relation to this complaint as applied to the relevant law cited aforesaid in relation to the specially protected position of pregnancy, on the balance of probabilities, I am satisfied that the Complainant has made out a prima facie case of discrimination on the ground of gender in relation to her dismissal contrary to Sections 6(1), 6(2)(a) and 8 of the Employment Equality Acts and the Respondent has failed to rebut same based on the following findings:
· The timing of the Complainant’s dismissal tends to support her contention that her dismissal was primarily connected with her pregnancy. In particular, on 12th November 2013, a flight booking was confirmed for a team including the Complainant to travel to Denmark from 9th-12th December 2013. The next day on 13th November 2013, the Complainant informed her Manager, Ms AB of her pregnancy which was communicated to Ms CD and HR. Following a week off work with pregnancy related sickness, the Complainant’s employment was terminated on 25th November 2013, being the last working day before the expiry of her six month probation period. Although Ms AB was not involved in the booking process, I find it incredible that this booking would have been made if terminating the Complainant’s employment at the end of the six month probation period for performance related reasons was being was being contemplated on 12th November 2013.
· The absence of any paper-trail whatsoever in relation to any performance review process, alleged performance issues or the apparent decision to let the Complainant go at the end of her probation period (which was contended preceded notification of her pregnancy) also tends to support the Complainant’s position that the Respondent has retrospectively cited performance related issues to justify the decision to dismiss the Complainant when in fact it is primarily related to her pregnancy. The Respondent accepted that there were no minutes of the so-called performance related meetings with the Complainant or any written record of warnings given. Likewise, email communications with HR did not refer to any performance related issues and merely referred to the expiry of the Complainant’s probationary period. I also found the introduction of documentation clearly not previously disclosed to the Complainant at the hearing to justify such purported performance issues to be wholly unacceptable. Furthermore, I do not accept the Respondent’s explanation for the absence of a paper-trail, being that it operates a flat management structure and culture, especially given its caliber and the high standards of adherence to procedures expected of the Complainant. For this reason, I prefer the Complainant’s evidence over that of Ms AB and Ms CD (which was not substantially corroborated by the other witnesses) and must conclude that if there were any performance issues with the Complainant, they were so minor that they did not merit documenting.
· Pregnancy aside, employers should adhere to certain minimum fair procedures in relation to the termination of an employee’s employment during their probationary period including a performance review process clearly giving an employee notice that their job is at risk if they do not meet certain standards. This could include provision of a performance plan and relevant training/supports. In this respect, the Complainant’s contract provided: “Your performance shall be formally reviewed on a weekly basis during the course of your employment with the Company.” However, it is common case that no formal performance reviews were conducted in the course of her employment, she was not provided with any performance plan or afforded any specific training/supports if deemed required. Another factor tending to support the Complainant’s contention that her dismissal related to her pregnancy includes the fact that the Respondent did not consider any alternatives to dismissal such as an extension of her probationary period as provided for in her contract of employment.
· I also find that the absence of any written reasons for termination of the Complainant’s employment as required by the Pregnancy Directive and referred to in various Labour Court decisions indicative that the dismissal arose from her pregnancy and not for reasons unconnected with her pregnancy.
· Finally, the Respondent has made much of the fact that other staff who have pregnant in the past have not been dismissed during their pregnancies and in particular Ms EF who was pregnant at the same time as the Complainant and had not been subjected to similar treatment. Firstly, it does not automatically follow that merely because other employees in the same position of the Complainant have not been dismissed during their pregnancies that her dismissal was unrelated to her pregnancy. Secondly, Ms EF’s position was different as she was a long-term employee with 4.5 years service. Thirdly, having regard to the fact that Ms EF and the Complainant were pregnant at the same time, I am satisfied that her probation represented a convenient way for the Respondent to let her go.
4.7 I am not satisfied that the Complainant has made out a prima facie case of discrimination on the ground of family status contrary to Sections 6(1), 6(2)(c) and 8 of the Employment Equality Acts as regardless of any inappropriate comments which may have been made at the Complainant’s interview, there was no evidence that the Respondent’s decision to dismiss her related to her family status as a married female per se. Finally, given the relatively short period between notification of the Complainant’s pregnancy and her dismissal and the fact that her pregnancy sickness was short-lived within that short time-frame, I am further satisfied that a claim on the ground of disability or failure to provide reasonable accommodation had not cystalised and the Complainant has not made out a prima facie case of discrimination on the ground of disability contrary to Sections 6(1), 6(2)(c) and 8 of the Acts.
5.1 I have concluded my investigation of the complaint herein and based on the aforementioned, I find pursuant to Section 79(6) of the Act, that the Complainant has made out a prima facie case of discrimination on the ground of gender owing to her dismissal during her pregnancy contrary to Sections 6(1), 6(2)(a) and 8 of the Employment Equality Acts and the Respondent has failed to rebut same. I am not satisfied that the Complainant has made out a prima facie case of discrimination on the grounds of family status and disability contrary to Sections 6(1), 6(2)(c), 6(2)(g) and 8 of the Employment Equality Acts or of sexual harassment contrary to Section 14A of the Acts requiring rebuttal by the Respondent.
5.2 In accordance with Section 82 of the Act, I order the Respondent to:
(a) Within 42 days of the date herein, pay the Complainant €53,000 in compensation for the finding of discrimination on the ground of gender in relation to her dismissal. I have arrived at this award having regard to the effects of discrimination on the Complainant who was clearly very upset at her sudden and unexpected dismissal during her pregnancy and also having regard to the requirement pursuant to Article 17 of the Framework Directive that the sanction be “effective, dissuasive and proportionate”. I would have been minded to award the Complainant the maximum level of compensation being two years’ remuneration due to the seriousness of the discrimination. However, given the relatively short tenure of the Complainant’s employment, I have limited the award to 18 months inclusive of her contracted guaranteed bonus of €5,000, totalling €53,000. This also represents the balance of payment for the remainder of her two year fixed term contract.
(b) Whilst acknowledging that the Respondent has an Employee Handbook and policy on maternity protection in place, given the circumstances of this case, pursuant to Section 82(1)(e) of the Acts, I deem it necessary to further order that the Respondent conducts a review of its procedures in relation to its employment policies, including a requirement that its staff undertake such training as is necessary to ensure that it is in compliance with the Acts with reference to the gender ground.
5.3 Given the sensitivities in this case, I have exercised my discretion to anonymise this decision.
Adjudication / Equality Officer
21st December 2016