ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00011063
Parties:
| Complainant | Respondent |
Anonymised Parties | An administrator | A software company |
Complaint:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00014814-001 | 6/Oct/2017 |
Date of Adjudication Hearing: 21/May/2018
Workplace Relations Commission Adjudication Officer: Catherine Byrne
Procedure:
In accordance with Section 8 of the Unfair Dismissals Act 1977, this complaint was assigned to me by the Director General. I conducted a hearing on May 21st 2018 and gave the parties an opportunity to be heard by me and to present evidence relevant to the complaint.
The complainant was represented by Ms Ann Conan of the Citizens Information Centre. The respondent was represented by Ms Lisa Conroy of Peninsula Business Services, accompanied by Mr Brian Dolan. The Chief Financial Officer and the Human Resources Manager gave evidence for the respondent.
Background:
The respondent is engaged in the marketing and selling of a specific IT software system and employs just under 50 people in Ireland. The complainant joined the company on July 3rd 2017 in the role of “Support Admin Co-ordinator” on an annual salary of €30,000. She was dismissed six weeks later. The respondent claims that the complainant’s role was made redundant but she complains that she was dismissed because one week after she joined the company, she informed her manager that she was pregnant. |
Preliminary Issue:
Protection under the Unfair Dismissals Act Section 6 of the Unfair Dismissals Act 1977 – 2015 (“the Act”), provides as follows: “(1)Subject to the provisions of this section, the dismissal of an employeeshall be deemed, for the purposes of this Act to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal. (2) “Without prejudice to the generality of sub-section 1 of this section, the dismissal of an employee shall be deemed, for the purposes of this Act to be an unfair dismissal if it results wholly or mainly from one or more of the following: (a) – (e) are not relevant for this case. (f) …the employee’s pregnancy, attendance at ante natal classes, giving birth or breastfeeding or any matter concerned therewith…” Section 6 of the Act therefore, clearly provides that the dismissal of an employee for reasons related to pregnancy or matters related to pregnancy “shall be deemed” to be unfair. With a small few exceptions, section 2(1)(a) of the Act provides that an employee who, at the date of the termination of their employment, has less than one year’s continuous service, may not bring a claim of unfair dismissal. One exception is the category of employees described at (f) above, and one of the effects of the insertion of sub-section (2A) in section 6, is to offer the protection of the Unfair Dismissals Act to an employee who claims that their dismissal was due to pregnancy, even if they have less than one year’s service. The effect of the legislation set out above is that a dismissal that relates wholly or mainly to pregnancy may be an unfair dismissal, unless there were other substantial reasons and, that an employee in these circumstances with less than one year’s service may claim protection under the Act. The issue for consideration as a preliminary matter is if the complainant in this case is entitled to claim that she is entitled to such protection. I considered the written submissions of both parties prior to the hearing of this complaint and it is my view that the complainant has established the basic facts upon which it could be presumed that her employment was terminated due to her pregnancy. These facts are, that she informed her employer that she was pregnant, and shortly afterwards, she was dismissed. With the complainant having established a “prima facie” case that her dismissal was related to her pregnancy, the burden of proof is on the respondent to prove otherwise. This position was accepted at the commencement of the hearing and, accepting the burden of proof, Ms Conroy, for the respondent, argued in the first instance that the complainant was dismissed due to redundancy. |
Summary of Respondent’s Case:
Notification of Pregnancy The complainant was not the first choice to fill the role of Support Admin Co-ordinator which became vacant in February 2017 due to the resignation of the incumbent. When the successful candidate left the job after two weeks, the complainant was interviewed a second time and she commenced in the role on July 3rd 2017. When she informed her line manager that she was pregnant, the respondent’s submission notes that her manager congratulated her and arranged a meeting with the HR Manager on July 13th. The Requirement for Cost-Cutting Measures The respondent denies the allegation of unfair dismissal and submits that the complainant was made redundant for cost-cutting reasons. The minutes of the company’s operational board meeting on July 20th were produced in evidence at which the directors discussed the need to save €100,000 during the remainder of 2017. Another document shows that overheads were reduced from €469,000 in June 2017 to €378,500 in December of that year, a difference of €90,500 across the seven months to the year-end. The respondent’s witnesses said that the complainant’s role was made redundant when other employees were allocated the tasks associated with the Support Admin Co-ordinator role and the job has not been filled since the complainant was let go. Evidence of the Chief Financial Officer (CFO) In his evidence at the hearing, the CFO said that when the role became vacant in February 2017, he advised the Operations Director not to recruit a new candidate and to delegate the responsibilities to others. He said that the Operations Director did not follow his advice and went ahead and instructed the HR Manager to advertise the role. In his evidence, he said that he was not aware until the operational board meeting of July 20th 2017, that the role had been filled – at this stage, by two candidates in succession. When he was asked why the Operations Director did not follow his advice, he said that he did not have the authority to instruct her not to fill the role. Since the dismissal of the complainant, he said that he now has this authority and all vacancies must be approved by him in advance of advertising. Evidence of the HR Manager The HR Manager gave evidence and explained that the decision-maker with regard to the filling of this vacancy on the two occasions was the Operations Director, who could not attend the hearing due to a family bereavement. Following the decision at the meeting of July 20th, the HR Manager said that she considered the possible alternatives to redundancy, but no other options were feasible. She said that the only other vacancies were sales and marketing jobs which were not suitable for the complainant. On Monday, August 14th she and the complainant’s manager had a meeting with the complainant and informed her that her role was being made redundant. Her employment was terminated that day and she was paid until Friday, August 18th. Six weeks after the complainant was made redundant, the receptionist at the company resigned. In her evidence, the HR Manager said she didn’t consider contacting the complainant about the possibility of taking on this role, although the complainant had filled in on reception as part of an arrangement to cover breaks. She said that it was a completely different role at a lower salary and for this reason, she did not think that it would be suitable for the complainant. She also said that the company had an obligation to openly recruit for this role. This Dismissal is Not Connected to the Complainant’s Pregnancy Arguing that the dismissal of the complainant was not related to her pregnancy, the respondent’s representative, Ms Conroy, stated that, in reaching the decision to make the complainant’s role redundant, the CFO was not aware that she was pregnant. Of the 46 employees at the company, Ms Conroy said that 19 are female. In the last four years, six employees have taken maternity leave and two have been pregnant more than once. At present, three employees, one of whom was the complainant’s line manager, are on maternity leave. The line manger’s role is not being back-filled during her leave. The HR Manager said that, while she attended the meeting on July 20th, she did not raise the fact of the complainant’s pregnancy. Before the complainant was dismissed, she said that she informed the CEO and the CFO of the risks associated with terminating the employment of a pregnant woman. At the hearing, the CFO said that he and the CEO felt that there was no risk, as the role was redundant. Ms Conroy argued that the only evidence that the complainant can offer to support her claim is the announcement of her pregnancy between the date of her commencement and her dismissal. She also argued that the complainant would not have been aware of the financial predicament that the company was in and the need to reduce overheads. Case Law Precedents 1 Arturs Valpeters v Melbury Developments, EDA 0917 Arguing that the complainant’s allegation of discrimination are mere assertions and speculation, Ms Conroy referred to this case of as one where it was held that, “Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.” 2 Teresa Gilligan v Tougher Oil Distributers Limited, UD 1236/2014 Arguing that the outcome of this case applies directly to the case we are concerned with here, Ms Conroy referred to the Tribunal’s determination that Ms Gilligan failed in her claim that pregnancy was the reason for her dismissal. 3 Freeman v TJ Belles Limited, UD 944/2014 In this case, the Tribunal found that the dismissal of this claimant was not related to her pregnancy but was “due to a combination of the need to divide the hours between three rather than two employees [and] a downturn at the time in the respondent’s business.” 4 Sweeney v Fairbrother Child-minding Limited trading as The Orchard, UD 864/2013 In this case, the Tribunal also found that the claimant was not dismissed for reasons related to her pregnancy. |
Summary of Complainant’s Case:
Dismissal on the Grounds of Pregnancy Having been interviewed for the role of Support Admin Co-ordinator in April 2017, the complainant was unsuccessful and another person was recruited who was more suitable. On June 14th however, she received a phone call from the HR Manager at the company who informed her that the job had become vacant again, as the successful candidate had left after two weeks. The complainant was offered and accepted the position. She resigned from the place where she was working and commenced with the respondent on July 3rd 2017. About a week later, she informed her line manager that she was pregnant. Shortly after she arrived for work on Monday, August 14th, the complainant informed her manager that she had three ante natal appointments arranged and gave her details of the dates on which she needed to take time off. That afternoon, she was called to a meeting with her manager and the HR Manager and informed that her role was redundant and she was dismissed that day. She was paid up to August 18th. It is the complainant’s position that the termination of her employment is in contravention of section 6(2)(f) of the Unfair Dismissal Act 1977 (amended) which provides that; “…the dismissal of an employee shall be deemed, for the purposes of this Act to be an unfair dismissal if it results wholly or mainly from …the employee’s pregnancy, attendance at ante natal classes, giving birth or breastfeeding or any matter concerned therewith…” Evidence of the Complainant In her evidence, the complainant said that she was working in a temporary contract role and she resigned from this to take up the permanent position with the respondent. She also said that the job suited her as it was closer to her home. When she commenced in the role, she said that she was provided with training and support to get up and running and she found that the environment in the company was friendly and supportive. However, she said that when she informed her manager that she was pregnant, the training stopped and she relied on what she had learned in her first week. She said that her job involved scheduling appointments, preparing sales invoices and looking up information on the company’s systems and compiling spreadsheets. She said that if she had got more training, she could have done other work. On the day she announced her pregnancy, she said that her manager seemed to be shocked and, contrary to what the respondent stated in evidence, no one congratulated her.
On August 14th, the complainant said that she was caught off-guard when her manager called her to a meeting with the HR Manager at which she was informed that her role was redundant and she was being let go on that day. She said that she got upset at the meeting and her manager offered to collect her belongings so that she wouldn’t have to go back to her desk. When her employment was terminated, the complainant said that she was about 13 weeks’ pregnant. In these circumstances, she said that she felt that she wouldn’t get another job, so she didn’t look for one. She has not worked since her dismissal and she had her baby in February 2018. In addition to her salary, she was in receipt of an invalidity benefit from the Department of Social Protection and details were submitted in evidence with regard to her losses since her dismissal. Case Law Precedents In support of the complainant’s position, Ms Conan referred to a number of cases where the Labour Court, the Employment Appeals Tribunal (EAT) and Adjudication Officers have found that dismissal of a pregnant employee was unfair. 1. Western Brand Group v Aneta Petrova, UDD 1819 The Labour Court found that the complainant in this case was dismissed as a result of her absence due to her pregnancy and subsequent miscarriage and decided that the dismissal was unfair. Other cases were adduced to show that where an employer failed to follow proper procedures in arriving at a decision to make an employee redundant, the purported redundancy is an unfair dismissal. 2. Morrissey v Gilmore, UD 2237/2010 In this case, the EAT found that the employer failed to follow proper procedures in making the complainant redundant and determined that the dismissal was unfair. 3. A General Operative v A Dairy Processing Plant, ADJ 00003771 4. A Security Officer v A Security Company, ADJ 00007065 In these cases, the adjudicator found that the employers had not followed proper procedures in reaching the decision to dismiss the complainants. Ms Conan referred to Article 10 of the European Council Directive 92/85 of 1992 (the “Pregnancy Directive”), the objective of which was to introduce measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding. The directive provides that: “Whereas the risk of dismissal for reasons associated with their condition may have harmful effects on the physical and mental state of pregnant workers and workers who have recently given birth or who are breastfeeding; whereas provision should be made for such dismissal to be prohibited.” Despite the turgid language, the directive is clear regarding its intention that dismissal from the beginning of pregnancy up to the time when a woman has finished breastfeeding is prohibited in law, apart from very exceptional circumstances not connected with the employee’s condition. Ms Conan referred to the decision of the Court of Justice of the European Union (CJEU) in the case of Jiménez Melgar v Ayuntamiento De Los Barrios in which the Court confirmed that the Pregnancy Directive enjoys direct effect and can be relied upon in the courts of the member states. She referred to a number of Labour Court cases that have relied on the provisions of the Directive: 5. Assiso Assembly Limited v Corcoran, EED 033/2003 Here, the Labour Court held that; “Where an employee is dismissed while pregnant or on maternity leave, both legislation and case law state that the employer must show that the dismissal was on exceptional grounds not associated with her pregnancy and such grounds, in the case of dismissal, as a matter of law and in the case of discrimination as a matter of good practice should be set out in writing.” 6. Herco Investments Limited v O’Sullivan, EED 0316/2003 In this case, the employee was dismissed for lateness and unreliability two months after she informed her employer that she was pregnant. The Court found that, on the balance of probabilities, the employer failed to prove that the dismissal was not related to the employee’s pregnancy. 7. Kay Ryan v Michelle O’Connell, EDA 092/2009 In a case similar to the complaint under consideration here, the Labour Court upheld Ms O’Connell’s claim of constructive dismissal when she left her job after being informed that what she thought was a permanent job was reduced to a three-month contract. Application of the Law In her submission, Ms Conan acknowledged that it may not be unfair to dismiss an employee who is pregnant, but that, in this case, the exceptional circumstances envisaged by the Pregnancy Directive did not exist. She referred to the fact that the complainant was recruited when the previous candidate left the job after 10 days. She argued that the job could not have been redundant, when the employer filled the position twice in two months. Ms Conan also argued that the respondent did not follow its own procedures set out in the Employee Handbook, which provides that alternatives to redundancy should be explored and consideration given to retirement and voluntary redundancy. Arguing that the complainant has established the basic facts which show that she was dismissed due to pregnancy, Ms Conan said that the dismissal of the complainant which followed the news of her pregnancy cannot be reduced to a coincidence. She proposed the “inevitable conclusion” that the fact of the complainant’s pregnancy, the need to take time off for medical appointments and the need for the complainant to be replaced during her maternity leave led the respondent to decide to dismiss her. |
Findings and Conclusions:
Chronology of Events The facts of this case are as follows: In February 2017, the job that the complainant was appointed to became vacant. The CFO said that he advised his colleague, the Operations Director, that the role was not to be filled. The Operations Director ignored this advice and in April, the role was advertised and the complainant attended for an interview. She was not selected at that time, and another candidate was appointed in May, but left after two weeks. On June 14th, the complainant was contacted by the HR Manager to see if she was still interested in the role. She commenced in the company on July 3rd. On July 10th, she told her line manager that she was pregnant. On August 14th, her employment was terminated and she was told that the reason was redundancy. On September 28th, the job of receptionist became vacant, a role the complainant was qualified to undertake, but she was not considered for this and not offered the job. The CFO and the HR Manager said that the complainant’s role was made redundant to cut costs and she was not replaced. On the date of the hearing, the line manager that the complainant reported to was on maternity leave and she had not been replaced. Evidence submitted after the hearing showed that in July 2017, the respondent employed 54 staff and this was reduced to 48 in December of that year. In April 2018, this had been reduced again to 46 employees. Apart from the complainant’s role, all the other reductions were due to resignations. Findings The evidence of the respondent is that in April 2017, the Operations Director did not heed the advice of the CFO and, with the support of the HR Manager, she filled a vacancy. When the role became vacant for a second time, the Operations Director went ahead and filled the vacancy again and the CFO did not become aware of this until after the complainant informed her manager that she was pregnant. The HR Manager said that she checked with the Operations Manager before she filled the role on the two occasions, but she was not informed that the CFO had advised that the role was not to be filled. If I take this evidence at face value, I have to conclude that the complainant lost her job because of a disagreement between two directors. The Operations Director filled the vacancy against the advice of the CFO, and when he discovered that the role had been filled – twice – he asserted his authority and directed that the complainant was to be “made redundant.” It seems to me that this was entirely unreasonable and contradicts the well-established principles set out in Looney & Company v Looney UD 843/1984 adduced by the respondent themselves as a basis for considering this present case. Would a reasonable employer respond to a disagreement between two directors by dismissing an employee who has just announced that she is pregnant? Some other facts merit consideration: 1. The complainant’s job was the only one considered for redundancy among the Irish workforce; 2. In April, May, June and July 2017, the HR Manager seems to have been unaware of the requirement for cost-cutting and re-structuring, and she was only informed of the need for a redundancy after she became aware that the complainant was pregnant; 3. Claiming that her role was redundant, the company did not follow its own procedures and consult with the affected employee; neither was any consideration given to inviting others to apply for voluntary redundancy; 4. It was extremely inconvenient for the respondent to find out that the complainant was pregnant. She had just commenced in employment after the failed start of a previous candidate. Her line manager was also pregnant and would be going on maternity leave and the investment in her training would be lost while she herself was on maternity leave; 5. At 9.30am on the morning of August 14th, the complainant asked for time off to attend three ante natal appointment in the coming weeks. That afternoon, she was informed that her job was redundant; 6. There is no reason why the complainant could not have been offered the receptionist’s job after she resigned on September 28th (or during this person’s notice period). The HR Manager recruited the complainant in this way when the complainant’s predecessor left after two weeks; 7. The complainant was on a salary of €30,000 and the saving up to year-end as a result of her termination was around €10,000. She would have been due to go on maternity leave in January 2018. The respondent said that they do not “top up” maternity benefit, with the result that from January 2018, she would have been no cost to her employer. Legal Precedents A number of case law precedents have been adduced by the complainant and the respondent in support of their respective positions. Each turns on its own facts, and the most relevant, in my view, are those cited by the complainant and specifically, the case of Kay Ryan v Michelle O’Connell, EDA 092/2009 and Herco Investments Limited v O’Sullivan, EED 0316/2003. Both claimants had only a few weeks’ service before being dismissed due to pregnancy and the Court found that, on the balance of probabilities, they were dismissed because they were pregnant. A case not referred to by the parties, but which is a useful reference, is the appeal of a decision of an Equality Officer to the Labour Court in Intrium Justitia v Kerrie McGarvey, EDA 095/2009. Reflecting the intended effect of the Pregnancy Directive, the Chairman concluded: “It is settled law that special protection against dismissal exists during pregnancy. Only the most exceptional circumstances not connected with the condition of pregnancy allow for any deviation from this.” Conclusion It is my view that “the most exceptional circumstances” as intended by the Directive, did not apply to the redundancy of the complainant in the case under consideration. That is not to say that a pregnant worker cannot be made redundant, but the circumstances in the workplace must be such that there is absolutely no alternative to this course of action. I do not accept that the respondent in this case had no other alternatives to making a cost saving of €10,000, other than the dismissal of the complainant. Considering all of the facts of this case, I find it difficult to accept that any company would dismiss an employee in circumstances where her appointment arose from a failure by one manager to accept the instructions of another. Regardless of any protective entitlements, this would make the such a termination inherently unfair. I have reached the conclusion that the complainant was dismissed because she was pregnant and because of the inconvenience this presented to her employer. |
Decision:
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
I have decided that the complainant’s dismissal was unfair. It was agreed between the parties, that if I find that this complaint is well-founded, compensation is the most appropriate form of redress. At the time of her dismissal, the complainant was around 13 weeks’ pregnant and she said that she felt that it would be difficult to find another job. While, if she had made some effort, she may have found a job, I accept that she would have been concerned about the prospect of having to inform another employer that she was pregnant, and I think that her decision not to look for another job was reasonable in these circumstances. I have decided that the respondent should pay the complainant €10,000 gross, being an amount approximate to what she would have earned if she had remained in employment up to the commencement of her maternity leave in January 2018. |
Dated: 13th June, 2018.
Workplace Relations Commission Adjudication Officer: Catherine Byrne
Key Words:
Pregnancy-related dismissal |