ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00004590
An Office Worker
An Agri Business Company
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 – Discrimination was alleged on the Family Status ground and Dismissal on the Pregnancy Ground.
Date of Adjudication Hearing: 03/04/2017
Workplace Relations Commission Adjudication Officer: Michael McEntee
In accordance with Section 79 of the Employment Equality Acts, 1998 - 2015, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
1: Summary of Complainant’s Case:
It was the Complainant’s basic case that she had been the subject of a discriminatory dismissal on the grounds of her pregnancy. The various grounds advanced by the Respondent to justify her dismissal were in reality just flimsy disguises to cover the basic act of discrimination. These were her level of leave and absences from work, her frequent absences for her desk during the working day, her alleged over use of her personal mobile phone and her lack of engagement with her colleagues.
2: Summary of Respondent’s Case:
The Complainant commenced employment with the Respondent on the 1st February 2016. Her appointment was subject to a probationary period. By the 1st March 2016 the Respondent had concerns regarding the Complainant’s work performance and conducted a meeting with her on that day. Issues of complaint were outlined. At the conclusion of this meeting the Complainant advised the Respondent that she was pregnant. The Complainant assured the Respondent that her work behaviours would improve. A further meeting took place on the 21st April 2016, the Complainant was warned that her performance needed to improve and she would be reviewed again on the 5th May 2016. At this meeting little progress was recorded. The Complainant admitted to being “unhappy” in her position. On the 13th May 2016 the Respondent indicated to the Complainant that her employment was being ended.
From the announcement of her pregnancy the Respondent had been very supportive – the office where she worked was entirely female and very used to pregnancy and maternity leave issues. Her pregnancy was never an issue in the Respondent’s considerations.
3: Findings and Conclusions:
3:1 Burden of Proof and the Legal Context.
As this is an Employment Equality case it is necessary first to look at the situation regarding the burden of proof.
In this regard, it is appropriate for me to consider the Labour Court’s comments in examining the circumstances in which the probative burden of proof applies in employment equality cases. In the case of Dyflen Publications Limited and Ivana Spasic (ADE/08/7) the Court adopted the approach of Mummery LJ in Madrassy v Nomura International plc  IRLR 246, and stated that
“… the court should consider the primary facts which are relied upon by the Complainant in their proper context. It also indicates that in considering if the burden of proof shifts the court should consider any evidence adduced by the Respondent …”.
The Labour Court continued
Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.
Furthermore the question of the Pregnancy has to be regarded. The extensive range of legal precedents is important here. It is useful, as a summary aide, to quote from Bolger, Bruton and Kimber, Employment Equality Law - 2012 – Round Hall Press here.
“It is now well established that the existence of the pregnancy itself is sufficient to shift the burden of proof to the employer to prove that a dismissal of a pregnant employee was not on grounds of the pregnancy. In effect for an employer to dismiss a woman during her pregnancy, regardless of the reason for that dismissal, they must have duly substantiated reasons for the dismissal given to the employee in writing. Where an employer fails to do that, it is likely that the dismissal will be found to have been unlawful even though no such requirement exists in relation to any other dismissal outside of the pregnancy situation.”
In this context Assico Assembly Limited v Corcoran (EED 033/2003) is an Authority referencing the needs quoted by Bruton above for “duly substantiated decisions”.
3:2 Accordingly the Key Question in this case was whether on not there was a Discriminatory Pregnancy Related dismissal.
3:3 Consideration of the Evidence.
Oral evidence was given by the parties. The key decision maker was Ms. AX, the Accountant and effectively the Manager of the Complainant. She advised that she had taken, in consultation with HR, the decision to dismiss the Complainant. She was a very experienced Manager in a very female orientated office. She had recruited the Complainant. In her view the Complainant had never settled in the Company and even in the first month, before any indications of pregnancy , numerous issues had arisen. Evidence was supplied of considerable non business e mail traffic and absences from the office, albeit that some of the days were annual leave. The short notice of some of the days was commented upon. Ms. AX pointed to the track record of the Respondent in regard to facilitating maternity issues and strongly rebutted any suggestions of a pregnancy related element to the dismissal. It was pointed out that the Dismissal was not a standard dismissal per say but the non confirmation of an employees employment during a probationary period. Evidence was also given by Ms AY of the HR Department of meeting with the Complainant and minutes were presented in evidence. The Complainant queried the alleged contemporaneous nature of the minutes and the non formal confirmation of the minutes by the Complainant. The Complainant gave direct oral evidence.
All parties were open to cross examination by the legal representatives of both parties.
Having considered all the evidence and bearing in mind the Burden of Proof position set out above and the principles set out in summary form in the extract from Bolger, Bruton and Kimber, Employment Equality Law - 2012 - Round Hall Press I came to the following conclusions.
A Probationary period is a trial period in employment and the Employer is entitled to use this period to form a judgement as to the long term suitability of an employee prior to making a permanent appointment.
In the case in hand the Respondent manger, Ms. AX, an experienced Office Manager came to the view that the Complainant was not “working out” in the Office. I found her a very credible witness. There was, in my view, sufficient evidence presented to substantiate her views.
By contrast I did not find the oral evidence of the Complainant very persuasive.
It is also important to note that a meeting took place, on a one to one basis, between the Complainant and the HR Representative, Ms. AY, on the 4th May 2016. Ms. AZ gave evidence of having concerns regarding some of the issues being raised by the Complainant at earlier meetings. The meeting of the 4th May was to provide her with an opportunity to expand and explore with Ms.AZ from HR, the background to the issues. Ms. AY was anxious to establish the reasons why the Complainant felt “Unwelcome” and other issues of personal concern. The meeting was not a success as the Complainant, in the view of Ms. AY, did not really wish to elaborate or expand on her concerns. A minute of this meeting was in the evidence.
Accordingly, taking all the evidence set out into account, I did not find any issues of remiss or Unfairness in the Respondent decision not to continue the Probation period.
Regarding the Pregnancy issue I again was persuaded by the evidence of the Manger Ms.AX, pregnancy was a very regular condition in the office and I did not find or detect any overtones of discrimination on this ground. Likewise the evidence of Ms.AY of HR, corroborated this view.
Regarding the issue identified in Bolger, Bruton and Kimber above regarding “Substantial Grounds” being clearly communicated I found that the issues of complaint were clearly communicated to the Complainant at all times as were the reasons for not offering permanent employment.
I did not find any falling issues of basic procedures – I refer to SI 146 of 2000 here – Code of Practice on Grievance and Disciplinary Procedures as an aid here.
3:5 Final Summary
In final summary I did not find that a prima facie case to sustain a claim of Discriminatory dismissal on the Pregnancy ground or Discrimination on the ground of Family Status had been established.
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
Complaint/Dispute Reference No.
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998
The Claim is dismissed for the reasons listed above in Section 3 of this Adjudication.
Dated: 19 June 2017
Workplace Relations Commission Adjudication Officer: Michael McEntee