ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00013510
Retail Sales Consultant
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998
Date of Adjudication Hearing: 09/10/2018
Workplace Relations Commission Adjudication Officer: Emer O'Shea
In accordance with Section 41 of the Workplace Relations Act, 2015 [and/or 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).
Summary of Complainant’s Case:
These submissions are made to the Workplace Relations Commission this 9th day of October 2018, on behalf of the Complainant. The Complaint herein relates to a claim under section 77 of the Employment Equality Act, 1998 (hereafter “the 1998 Act”), see Workplace Relations Commission Complaints form (Appendix 1). This Complaint is brought by Ms KP (hereafter “the Complainant”), against her former employer, (hereafter “the Respondent”).
The Complainant commenced her employment with the Respondent on the 18th December 2017. Her role was as a Retail Sales Consultant in the company store in Carrick-on-Shannon.
The Complainant relocated from Dublin to Carrick-on-Shannon for this position and the Respondent had been made aware of this arrangement prior to her commencement.
A contract of employment and employee handbook were provided at the outset of her employment (Appendix 2 and Appendix 3 respectively). The Complainant received €9.45 per hour and she worked between 36-40 hours per week. On average, the Complainant’s salary varied between €320-€340 gross per week, depending on the number of hours worked.
On 22nd December 2018, the Complainant felt ill during work. She tried to hide this from her co-workers and thought her symptoms would ease. However, by lunch time her condition worsened, and she was forced to leave the store. She felt so unwell that she went to visit her GP that day.
Her GP is Dr PN Carrick on Shannon, Co. Leitrim
She was then referred by her GP to Sligo General Hospital and admitted on the same day. The Complainant’s condition was communicated to Mr SP, the Manager of the store. The Complainant arranged to furnish Mr. SP with a copy of a Medical Certificate (Appendix 4).
On 28th December 2018, the Complainant attended for work. She reported to Mr.SP and explained to him that her prior illness was related to the fact that she was 12 weeks pregnant.
The Complainant attended work as normal for the following days. On 13th January 2018, she became ill and was forced to visit her GP. Her GP certified her as medically unfit to attend work for three days. The Complainant was due to return to work on 17th January 2018, however, she was not satisfied that she had fully recovered and so she attended with her GP before returning. On this occasion, her doctor advised her to remain at home and rest further.
The Complainant communicated the above to Mr. SP as she was concerned to keep him updated.
Mr SP assured the Complainant that everything was fine, and that she ought to obey the directions of her medical advisors. The Complainant was relieved to hear this from her manager.
On 20th January 2018, the Complainant returned to work after her illness. She was feeling better and eager to get back to work.
THE COMPLAINANT’S DISMISSAL
On 23rd January 2018, the Complainant attended for work as normal. The Area Manager for the Respondent, Mr J.B., attended the store and indicated to the Complainant that it was time for her probation review. This was the first time our client had been told about the review and she had received no prior warning. During the course of the review, Mr. JB stated the Complainant’s performance was not in line with the duties of a Sales Consultant.
He cited an instance where the Complainant did not wear the required uniform. On that occasion, the store was particularly cold, and the Complainant obtained the permission of her manager to wear her own coat to stay warm.
Another issue raised by Mr JB was that the Complainant was accessing unauthorised websites on the store computer. On that particular occasion, the Complainant had been researching products offered by a competitor, and that was the reason for her accessing that website.
Next, Mr JB showed the Complainant a diary and pointed out the dates on which she was absent on certified sick-leave. He then abruptly concluded the meeting by saying “Your performance has failed so this is your last day”.
The issues raised by Mr. JB had never been before broached with the Complainant. She had received no verbal or written warnings. Indeed, on several occasions, during the course of her employment, she received positive recognition for her contribution as Sales Consultant to the store. Mr. JB repeatedly raised issue with our client’s absence from work due to her pregnancy-related illness. This appeared to be the main concern for Mr.JB.
Mr JB informed the Complainant that for the times she was present in work, she was a good worker, but that her performance was affected by her absences for sick leave. The Complainant pleaded with Mr JB that this was because she was in the first trimester of her pregnancy and was suffering from ‘morning sickness’. She explained that she should not require as many sick days once she progressed past the difficult early stage of her pregnancy. However, Mr JB did not give this any consideration.
The Complainant’s employment with the Respondent was therefore terminated on the 23rd January 2018.
The Complainant submits that her dismissal by the Respondent was directly related to her pregnancy.
E-mail correspondence between the Store Manager, Mr SP, and the Human Resources Manager, Ms A.K, during the Complainant’s employment shows that the primary concern was her absences due to sick-leave for pregnancy-related illness (Appendix 5).
Furthermore, it is submitted that the items raised by Mr. J.B. as part of the Complainant’s performance review were both trivial and irrelevant and would appear to have been manufactured in order to facilitate the Complainant’s immediate dismissal.
A letter was sent to the Complainant from the Human Resources Manager, following her dismissal, outlining the alleged reasons for the dismissal (Appendix 6). Conspicuously, there is no reference in this letter to the sick-leave absences which were the focus of the probation review.
DISCRIMINATION UNDER THE EMPLOYMENT EQUALITY ACT
Discrimination by employers under section 8 of the 1998 Act constitutes:
“(6) Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee or prospective employee in relation to conditions of employment if, on any of the discriminatory grounds, the employer does not offer or afford to that employee or prospective employee or to a class of persons of whom he or she is one—
(a) the same terms of employment (other than remuneration and pension rights),
(b) the same working conditions, and
(c) the same treatment in relation to overtime, shift work, short time, transfers, lay-offs, redundancies, dismissals and disciplinary measures,
as the employer offers or affords to another person or class of persons, where the circumstances in which both such persons or classes are or would be employed are not materially different.”
It is submitted that the Complainant was discriminated against by the Respondent because of her dismissal by reason of her pregnancy.
In employment, pregnancy is a period of special protection. This is well established through case law, and in EU law, most notably in the leading Irish authority of: Trailer Care Holdings Limited -v- Deborah Healy (2012) EDA 128 (Appendix 7).
It was stated by the Labour Court in that case that:
“It is abundantly clear from these authorities, and from the legislative provision of the European Union, 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 which the Courts and Tribunals of the Union must vindicated within the limits of their jurisdiction. It seems equally clear that where a pregnant woman is dismissed during this 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.”
It is submitted in the instant case that, the burden of proving that the Complainant’s dismissal was in no way related to her pregnancy, rests with the Respondent.
It is further submitted that the Respondent attempted to attribute blame for the Complainant’s dismissal to her work performance.
The Complainant maintains that she was performing well in the job and at no point were any issues raised informally or formally in relation to her performance prior to the review on the 23rd January 2018.
Lastly, it is submitted that because the Complainant was dismissed during her pregnancy, by reason of matters relating to her pregnancy i.e. sick days for pregnancy-related illness, then that dismissal constitutes discrimination under the Equal Status Act, 1998, and under the provisions of the EU Directive 92/85/EEC (Pregnancy Directive).
EMPLOYEE HANDBOOK PROCEDURE
The Employee Handbook given to the Complainant at the commencement of her employment sets down the review procedure during the probation period. The Handbook, at paragraph 1.3, provides for periodic reviews of employee performance, and further provides:
“If a colleague’s performance is deemed unsatisfactory and no improvement has been made throughout the regular reviews, a decision can be made to terminate the contract, on or before the probation end giving one week’s notice or providing the colleague pay in lieu of one week’s notice.
If there is an instance of serious misconduct, the review meeting can be brought forward from the original timescale and a decision may be made at that point on whether the colleague will progress within their role.”
The Complainant was dismissed at her first review. It is submitted that she was not offered an opportunity to improve on the alleged performance issues, as Mr JB made them out to be. It is submitted that the review was wrongly employed as a measure to facilitate the dismissal of the Complainant without following proper procedures.
It is further submitted that the Complainant was never involved in an instance of ‘serious misconduct’ which would necessitate the immediate termination of her employment with the Respondent.
MITIGATION OF LOSS
Despite the fact that the Complainant was deeply hurt, upset, and shocked at the manner in which the Respondent dealt with her, she immediately commenced looking for alternative employment. She commenced a new role on the 21st March 2018
The Complainant is seeking full compensation amounting to 104 weeks remuneration as prescribed by s.82 of the Equal Status Act, 1998.
The Complainant is seeking compensation for the aggravating factor of the manner in which she was dismissed while pregnant.
The Complainant respectfully submits that all of the above is taken into consideration in deciding this matter.
In her direct evidence the claimant submitted that she was delighted to get the job and specifically moved from Dublin to take up the position. The respondent had been enthusiastic and stated that they did not need to look at any other CVs. She described the health challenges arising from her pregnancy and said she lost 10 kilos at the beginning of her pregnancy. She told her line manager about her pregnancy – she didn’t want her colleagues to know because the pregnancy was complicated. He responded that he would have to talk to HR. She stated that all the time Mr. SP assured her she was doing well. She stated that she had no advance warnings of the issues raised by the RM at the dismissal meeting – she had approval to wear a coat on the day at issue because the low temperatures. She asserted that she had been looking at a competitive company’s website to learn more about their offers. When the meeting concluded she said to Mr.B – but you know I am pregnant – he initially did not reply and then went on to say that on the basis of your review we have to fire you. Under cross examination, the claimant insisted that no performance issues had been raised with her. She denied that she had been using the company computer to access recipes and denied refusing to answer calls, accommodate other staff or participate in training. It was put to her that her pregnancy was never confirmed by way of a letter from a GP. The claimant categorically denied that she had ben unable to change a customer SIM card and refuted the allegation that she had been unwilling to train on end of day business or that she refused to deal with a customer as alleged by the respondent.
Summary of Respondent’s Case:
The claimant applied for a part time Sales Consultant position in our Carrick on Shannon store, was offered the position on the 4th December 2017 but requested a start date of the 18th December 2017. All paperwork, including contract of employment, employee handbook and a new employee/personal details template were sent to the claimant on the 6th December 2017. The probation form was sent to the store and it is company procedure that a new employee is brought through it when they start in their role. Mr. P (Store Manager) operated as a multi-site manager between Cavan and Carrick on Shannon and as the claimant had noted that she had her own transport and was flexible to travel to other locations, it was arranged that she would work with him in the Carrick on Shannon store on Monday 18th December 2017 and then go to work with him in the Cavan store on Tuesday 19th December 2017. (appendix 1 through to 6).
On the evening of the 18th December 2017, the claimant contacted to say that she was unable to travel to Cavan as her husband had been in a car accident and she had no access to transport. At short notice, Mr.JW, Region Support Manager had to divert his journey plan to meet and train the claimant in the Carrick store. The claimant was rostered Monday to Friday for that week and on Thursday 21st December 2017, she went home sick from work at 14.30pm and was out sick the following day.
The claimant’s next rostered day to work was Thursday 28th December 2017, she attended to work and produced a sick cert to Mr P for the previous week and told him she had been dehydrated (appendix 7). Later that day the claimant told Mr P that she was pregnant and told him not to tell anyone about it. Mr P told the claimant that he had a duty of care to inform Head Office and put in a telephone call to the HR Manager to ask for next steps. I told Mr P to proceed as normal and inform the claimant that once she had her pregnancy confirmed by her doctor, I would write to her confirming dates of leave and a pregnancy risk assessment would be scheduled. On the 29th December 2017 the claimant was working with Mr.P.C. the Assistant Manager. Mr PC attempted to conduct some system training during a quiet period with the claimant, but she refused as she was using the company computer to look at cooking recipes. The claimant also refused to answer the store phone if Mr P.C. was serving customers saying that she had a sore throat.
The claimant presented to work on her rostered days the following week (w/c 1st January 2018-7th January 2018) and on Thursday 4th January 2018 a colleague from the Cavan store came to work in Carrick with her. During the day Mr.RS observed the claimant using the company computer to access the Tesco mobile site for personal use as she was looking to purchase a phone, he took a picture and sent it to Mr SB. (appendix 8). The claimant was due to work in the Cavan store on Saturday 6th January 2018 and they had a conversation about travel and how long it would take for her to drive to the store. The claimant admitted to Mr. RS that she only had a provisional licence and had not yet done her driving test and that her husband would drive her over for her shift, bring their children out for the day ad drive her back home after her shift. It is a colleague’s responsibility to arrive to work on time as per company guidelines, however it was a concern that she had presented on her cv that she had a full clean driving licence and had confirmed on her new starter paperwork that she had her own transport. There is a clause in all contracts that colleagues may be required to work at other locations during their employment and may sometimes need to provide cover at short notice, although this is not always necessary to utilise, Area Managers would take note of this flexibility when a colleague is being recruited so that there is a pool of colleagues available at any one time to travel if needed. The claimant has since updated her cv and removed the line stating, ‘Full Clean Driving Licence’ (appendix 9).
On Monday the 8th January 2018 the claimant went home sick at 3pm, I queried with Mr P as to why a change was made to her rostered hours and he confirmed that the claimant had gone home early as she was unwell and confirmed that this was not pregnancy related. Mr P mentioned that he had concerns and was going to sit down with the claimant on Friday in store to discuss her suitability for the Sales Consultant role as he was concerned about her progression, I was not updated as to whether this discussion happened. The claimant worked her next 3 rostered days (10th/11th and 12th January 2018) and on Saturday 13th January 2018, she called in sick to Mr P 5 minutes prior to her shift starting. It is company policy that a colleague contacts their Line Manager 1 hour prior to their shift starting if they are going to be absent an I noted to Mr P to remind the claimant that the correct procedure was to be followed as per Company Policy (appendix 10). The claimant told Mr P that she had a cough and an ear infection and would be back to work on Tuesday 16th January 2018 for her next rostered shift, she did not mention that her absence was pregnancy related.
On the 16th January 2018, the claimant submitted a medical cert covering 3 days 13th January 2018, 15th and 16th January 2018 citing a Respiratory Tract Infection and a further cert from the 17th-19th January inclusive citing Viraemia (appendix 11 and 12). Again, the medical certs did not confirm that the absence was pregnancy related and the absences were deemed as sporadic. On the 20th January 2018, the claimant returned to work in the Carrick on Shannon store.
The 6-week probation review was due to take place on the 22nd January 2018 and as the claimant was rostered off on that day, Mr B, Area Manager arranged his journey plan to meet with the claimant on Tuesday 23rd January 2018. Mr P was rostered to work in the Cavan store that day and forwarded an email of some concerns from the colleagues that had worked with the claimant prior to the meeting (appendix 13). The feedback from Mr PC who would have worked regularly with the claimant was that she did not show any enthusiasm for the job or for learning and would not read or familiarise herself with current offers or tariffs (appendix 14). On occasion if the store was busy coming up to the time of the claimant’s break, she would leave Mr PC to deal with all customers rather than help him clear the queue. Mr PC attempted to train the claimant in end of day procedures and she refused as it was coming up to the end of her shift, even though this would form part of her daily routine depending on the shift she was rostered for. Mr P reported that there was little progression in terms of performance and sales. He stated that the claimant was unable to perform even basic tasks the new colleagues would learn in their first week of employment and did not attempt to learn about product specifications, tariffs or bundles as she had been instructed to do. Mr B brought the claimant through each of the headings and gave feedback as to why she had scored poorly in all areas bar customer service which was given positive recognition. The claimant did not challenge any of the feedback received and after next steps had been explained with regards to a week pay in lieu of notice, signed off the probation form, collected her personal effects and left the store (appendix 15). At no stage were Mr B or Mr PC, the Assistant Manager concerned that the claimant was upset.
The claimant returned to the store less than an hour after her review with a letter to Mr P requesting the grounds for her dismissal (appendix 16). I emailed the claimant a letter confirming that probation had been failed later that day (appendix 17). The following day, the claimant emailed looking for her p60, the timeframe for sending out p60’s was sent back to her and she responded looking for a reference (appendix 18). I prepared and sent the claimant a confirmation of employment letter in line with company procedure and shortly after I had sent it, the claimant attended the Carrick store again where she returned a work shirt and she asked Mr P to furnish her with a company reference and a copy of her probation form (appendix 19). I forwarded on a copy of the probation form as requested and I had sent the reference to her earlier that day. On the 30th January 2018 Ms Piotrowska emailed and requested her p45 and this was forwarded to her after payroll for the previous week had been closed out (appendix 20,21 and 22).
In February 2018, I received 2 separate letters from Damien Tansey Solicitors dated 6th February 2018, one was a request to release all personal data for the claimant and the 2nd was in relation to unfair dismissal. A response was prepared for each letter and posted back to the afore mentioned solicitors on the 14th February 2018 (appendix 23,24 and 25).
In July 2018, I received a notification from the WRC regarding a hearing date (appendix 26). In August 2018, I received a notification from the WRC that the hearing date had been postponed and toward the end of the same month I received notification from the WRC of the revised date and time of the hearing that brings us up to today’s date (appendix 27 and 28).
Telecom Retail is different from other forms of retail, customers choose to shop with us and expect that the Sales Consultant will listen to and understand their needs and apply their knowledge to ensure the customers’ needs are met. There is only one chance to make a sale and the store and its colleagues will be remembered for the service they provide. Sales Consultants need to think on their feet and be confident in their interactions, consultations with a customer can take time so new colleagues need to get up to speed in a short amount of time and use their time in store wisely to learn about handsets, bundle prices and tariffs as they will not always have the luxury of working alongside another staff member. Incorrect information or putting a customer on the wrong tariff can result in inaccuracies in monthly repayments and can have a serious impact on customer satisfaction, in turn having a negative impact on the brand image. Face to face interactions differ greatly from a call centre environment, if the colleague does not appear enthusiastic or knowledgeable the customer will lose faith and go elsewhere. I noted from the claimant’s cv that her only prior customer facing role was with Heatons from December 2016 to January 2017.
The claimant was not discriminated by the respondent. It is unfortunate that some colleagues who have been hired from a retail or hospitality background are not always suited to a challenging sales role such as Telecom Retail. The claimant’s employment was subject to a 6-month probation period as highlighted in the contract of employment that was issued to her prior to her commencing employment. Employment can be terminated at any time during or at the expiry of this probationary period provided that the company give one weeks’ notice or provide pay for one week in lieu of notice to be worked. The claimant’s probation was managed in line with company procedure, her performance fell below the required standards and she was given comprehensive feedback at the probation review. A view was taken that she was not showing progression within the role and as she did not show any enthusiasm to learn about any aspect of the role it was better to terminate the probation. The claimant was furnished with a letter confirming her probation was failed, a confirmation of employment letter and was paid a week in lieu of notice in line with company procedure. The claimant was not negatively treated because she was pregnant. The respondent company have a maternity leave policy in place and is full supportive of any colleagues that avail of this leave. There are 5 colleagues currently on Maternity Leave with a further 5, due to commence leave early next year.
In her direct evidence the HR manager confirmed the company employed in excess of 120 staff and asserted the claimant was dismissed on the basis of performance issues. She stated the decision to dismiss the claimant was taken by the Mr.SB and Mr.PC and Mr.JW.
Further documents were submitted by the respondent post hearing including a signed document from Mr.PC as the document submitted at the hearing was undated and an email from Mr.P in relation to the claimants performance to Mr.SB and Mr JW dated the 22nd.Jan. 2018.
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
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. Section 85a of the Act requires that claimants discharge a burden of proof in equality cases …..
“… where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary”. In Melbury v Valpetters (EDA 917), the Labour Court has already determined that mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. The burden of establishing the primary facts is placed squarely on the complainant.
The claimant asserts that she was dismissed as a result of her pregnancy while the respondent contends that her dismissal was related to performance issues. I acknowledge that the respondent made references to the matter of the claimant’s driving license in their written submission to the WRC- however, no reference was made to this issue in the company’s confirmation of failed probation that was issued to the claimant on the 23rd.Jan 2018.
I have considered all of the oral and written evidence presented and noted that:
- The claimant gave credible and consistent evidence denying any performance issues.
- No direct evidence was given by the claimant’s line managers or by the decision makers in the dismissal process.
- The respondent offered 2 documents by the claimant’s manager and assistant manager documenting alleged performance deficits on the part of the claimant. The dates on which these documents were written remains unclear.
- A further email from the claimant’s line manager on the date of her dismissal records hearsay concerns by the claimant’s line manager and a staff member from the Cavan Store.
- None of the authors gave evidence at the hearing.
- The respondent did not refute the claimant’s assertion that none of these alleged deficits were brought to the claimant’s attention at the time they arose – notwithstanding the provision in the respondent’s handbook which specify that performance reviews during probation “allow both the colleague and manager an opportunity to provide each other with feedback on how the colleague feels they are progressing”.
- The respondent submitted no minute of the dismissal meeting and no evidence was advanced to demonstrate that the respondent’s policy on performance reviews was observed. No evidence was presented to demonstrate that the claimant’s rights under natural justice were observed during the dismissal process.
- I note that the respondent’s internet policy provides that “Occasional but limited, personal use of email or other technology resources is generally permissible”. Notwithstanding this provision, the claimant’s personal internet usage was highlighted as a performance deficit. This supports the claimant’s representative’s contention that the items raised “were both trivial and irrelevant and would appear to have been manufactured in order to facilitate the complainant’s immediate dismissal”.
While taken individually, these matters may not be determinative, I find that taking the entirety of the foregoing into account I have concluded that the claimant has established a prima facie case of discrimination on the grounds of pregnancy and I find that the respondent has failed to rebut it. I believe this conclusion is consistent with the principles invoked by the claimant in EDA 128 where the Court determined that “...the law recognises that during pregnancy women are physically and emotionally vulnerable and the effects of dismissal can have a particularly deleterious effect on their physical and mental health. It is for that reason that the law provides special protection to pregnant women against dismissal except in exceptional circumstances. It is for the respondent to prove on the balance of probabilities that such exceptional circumstances existed in this case. In the Court’s view it has wholly failed to discharge that burden”.
Accordingly, I am upholding the complaint.
In accordance with Section 82 of the Act, I require the respondent to pay the claimant €16,460 compensation for this act of discrimination. I further require the respondent to review their HR policies with a view to ensuring that they comply with the Act.
Workplace Relations Commission Adjudication Officer: Emer O'Shea