ADJUDICATION OFFICER DECISION
A Hair Salon
Complaint Reference No.
Date of Receipt
Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer:
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
The Complainant claims that she was dismissed unfairly because of the inconvenience of her pregnancy to the Respondent.
The Respondent refuses the claim made and states that the Complainant did not progress sufficiently during her six-month probation period and she was let go.
Summary of Complainant’s Case:
The following is a summary of the Complainant’s case.
The Complainant said that she is originally from Poland and qualified as a hairdresser there in 2003 following a four-year training period. She came to Ireland in 2007 and worked in the hospitality industry for approximately 10 years. In early 2017 she decided to return to the hairdressing profession and started work with the Respondent on 26 August 2017. She said that she signed a contract of employment on 1 October 2017 for 30 hours a week and she was paid €277.50 gross per week. As part of her responsibilities she was asked to open and close the Salon, answer the phone and take appointments. She claims that she was left in sole charge of the Salon when her employer was otherwise engaged or on holidays.
She said that in December 2017 a new employee was employed by the Respondent as a beautician and as a result her hours of work were reduced.
The Complainant announced in early February 2018 that she was pregnant and as far as she was aware there was no problem at first. The Complainant’s pregnancy proved to be difficult. She was unwell and after attending her doctor she was certified as unfit to work from 9 February 2018 until the 16 February 2018 due to ‘pregnancy problems’. Following this period of time, she still felt unwell and returned to her doctor who certified her unfit for work from 17 February 2018 to 16 March 2018. She claims that when she produced her medical certificate to her employer she was met with “contained anger and frustration” and it was suggested that “maybe it would be better if [she] quit the job”, which upset her.
The Complainant claims that in late March 2018 she received a letter from her employer stating that the Respondent would not be “renewing/continuing your contract any further”, and that her employment would cease seven days from the letter on 6 April 2018. The Complainant points to a paragraph of this letter where the Respondent states that as per their agreement, the probationary period was extended from three months to six months; the Complainant refutes that such an agreement existed, and that the handwritten inclusion of a paragraph in the typed contract was entered by the Respondent after the contract was signed off on.
The Complainant refutes the other claims made in the Respondent’s letter in particular about a “communication problem” between her and the Respondent’s clients. The Complainant also challenged the Respondent’s claims that it received complaints about her and stated that she never received any warning either oral or written during her time there. She mentioned one issue about a client’s stained top, but she explained that she did not even get a warning for that and it was passed off without incident. The Complainant argued that if she was deemed to be lacking in communication skills, unreliable and incompetent, how come she was left to look after the premises and business when the owner was away on holidays or needed time off.
The Complainant took issue with the days that the Respondent claims she was absent - two of the days were certified sick leave due to pregnancy, one was a planned holiday and the other date mentioned she was not scheduled to work.
The Complainant through her representative said that nothing in her employment record warrants the termination of her employment, the termination was because the owner did not want to deal with the inconvenience of her pregnancy. She admitted that given that only three people worked in the Salon the owner’s frustration is understandable but that does not allow the Respondent to ignore the protections afforded under the Maternity Protection Acts. She said that the Pregnancy Directive 92/85/EEC prohibits dismissal of a pregnant worker unless “duly substantiated grounds for her dismissal” are provided in writing. This was not the case here, there were no issues or warnings raised and the basis of the Respondent’s decision to dismiss was the inconvenience of her pregnancy.
Summary of Respondent’s Case:
The following is a summary of the Respondent’s case.
The Respondent said that it had a vacancy in the Salon and following an interview it decided to give the Complainant an opportunity. The Respondent said that it was evident that the Complainant had no experience as a hair-stylist, but it agreed to allow her to get up to speed while she worked there. Training was going to be very important. Initially she was given a month’s probation to see how she would get on with the Salon’s clients. The Respondent was aware that the Complainant had past issues in employment, but it was willing to give her a second chance.
The Complainant commenced employment with it on the 26 August 2017 and in the written contract, there was a probationary period of 3 months set out until the 26 November 2017. The Contract was signed by both parties. The Respondent said that the Complainant had a young daughter and the Respondent was always flexible as regards time to allow her to arrange for her daughter’s needs. The Respondent said at first things were going okay and she was happy that she had given the Complainant the second chance. However, there were training issues and clients were not always happy and a number of clients outlined this to the owner. On one particular occasion a client’s jumper was stained with hair dye and the Salon had to compensate the client.
The Respondent said that following a review of the Complainant’s progress, her targets and her clients returning to the Salon it was deemed necessary to extend the probationary period to six months due to ‘ongoing issues’.
The Respondent said that during the day the Complainant was training to improve her skills. However, her attitude and her work levels dropped, she would go out smoking when it was not break time and she was looking for time off for personal reasons. She started to report unwell at work and had to go home sick on a number of dates in December. Following that, she took time off for a number of weeks on holidays, and when she was due to return to work at the end of January 2018, she reported in to work as sick and went out on sick leave again in February 2018. The Respondent said, the uncertainty was causing great difficulty for the Salon and its clients. The Respondent said that the Complainant’s attendance and availability to work was having a major consequence on her training, her ability to learn, her performance and progress.
The Respondent said that she really needed to have the Complainant ready and available to work on her return from her holidays in January 2018, but it was not working out. The Respondent said that it is a small Salon and the owner sought legal advice on how to proceed. The Respondent said that the Complainant has provided medical certificates and it was aware that she was pregnant from early February 2018. The Respondent said that the Complainant’s pregnancy was never an issue. It simply was not satisfied that the Complainant had preformed well enough or was progressing in her probation, mainly due to her own application, her leave and sick leave. The Respondent said that it sought more advice and was informed that it could terminate the Complainant’s contract in the probationary period if the Complainant was not meeting expectations.
The Respondent said on foot of the advice it took in relation to this it decided to bring the employment arrangement to an end while the Complainant was still in her probationary period. A letter to that effect was sent to the Complainant in and around 30 March 2018 outlining that due to the Complainant’s excessive work absences, which had interfered with her training and ability to progress, her poor communication skills and her overall performance has not been deemed satisfactory and she would not be kept on.
Findings and Conclusions:
Having considered the evidence and submissions of the parties, I decide the following,
This is a complaint pursuant to the Unfair Dismissals Act. The Complainant claims that she was dismissed for pregnancy or connected matters. The Respondent denies the claim and it is the Respondent’s evidence was there was an agreement in place where the Complainant was on 6 months’ probation and she did not come up to the appropriate standard during that time. Therefore, her contract was terminated as was its right to do so.
Section 6 of the Unfair Dismissals Act provides that a dismissal shall be deemed to be unfair if it resulted wholly or mainly from the “employee’s pregnancy, attendance at ante-natal classes, giving birth or breastfeeding or any matters connected therewith.” Such a claimant is not required to have one year’s continuous service.
I note that the Complainant did inform her employer of her pregnancy in early February 2018. Her evidence is that when she mentioned that she was pregnant, it was not received with great enthusiasm. The Complainant outlined that she was doing well in her employment and had a good relationship with the owner. However, when she became pregnant and required time off, because of pregnancy related issues, there was a change in attitude. The Respondent said there were no problems in their relationship, it was happy to hear the news of her pregnancy. However, the Complainant’s attitude changed thereafter, she was missing her training and her chance to progress, and her performance levels were not satisfactory in the role.
There is an extensive contrast in the evidence from the parties regarding the extension of the Complainant’s probationary period and her level of performance. There is little to no recorded evidence to suggest there were any problems with the Complainants work during the “probation period”. Both the Respondent and Complainant reference one incident regarding the staining of a customers clothing. From the evidence adduced I am satisfied it happened but I am not satisfied that it was of such a major consequence that the Complainant was disciplined for her part. I am satisfied that the Respondent trusted and valued the Complainant. The circumstances up to February 2018, when it transpired that the Complainant was pregnant, do not project a situation where the Complainant’s performance is on such a low level that both the Complainant and Respondent are aware of difficulties that could lead to the termination of the contract. The alternative seems to be the message I have taken from the parties. The difficulties seem to arise, or accelerate, from 6 February 2018 onward and I am satisfied that is the time that the news of the Complainant’s pregnancy is uncovered.
In assessing the evidence, I am satisfied that the Complainant had worked for the Respondent without any performance issues or issues that would put her on notice that her employment was in jeopardy. I am satisfied that the Respondent became aware of the Complainant’s pregnancy, that is not disputed. It is striking that the Complainant, who has now made it be known of her pregnancy and is having a difficult pregnancy, is served with a comprehensive letter outlining substantial performance related issues that she said came out of the blue and were not presented to her heretofore. I have not been presented with creditable evidence from the Respondent’s side that these issues were constant or were ever raised with the Complainant prior to this. There were no written records regarding the Complainant’s communication issues, lack of skills, lack of progression and no assessment of what skills the Complainant had or did not have for the job. There were no written record of warnings or letters of concern. Instead, I have been presented with evidence of the Complainant having to take time off due to some pregnancy related difficulties and is suddenly dismissed.
I note the decision in McGuirk -v- Irish Garden Publisher Limited DEC-E-2007-031 which is an authority for the principal that an Employee’s poor work performance can give rise to the termination of the employment even where the employee is pregnant. I note in that case that there was a history of poor performance, including the threat of termination, which the Complainant was on notice of well in advance of the pregnancy being known to the employer.
In McGuirk the Equality Officer said: “It is well established ECJ jurisprudence that women who are pregnant are to be afforded special protection in employment and cannot be dismissed from the beginning of the pregnancy until the end of their maternity leave (the protected period) save in exceptional circumstances unrelated to their pregnancy. It is true that the Complainant’s dismissal took place during the protected period and it therefore falls to the Respondent to show that the termination of her employment was unconnected whatsoever with her pregnancy”
The Respondent suggests that the dismissal arose solely as a result of the Complainant’s failure to meet expectations. I am satisfied that the Respondent must demonstrate that the dismissal is unconnected to the pregnancy, by the Respondent’s own admission her absence from work (on pregnancy related sick leave) was a part of the problem. I must find on the balance of probabilities which version of events I find to be the more credible. In the absence of any acknowledged performance review of the Complainant’s performance and/or any disciplinary process for poor performance, it is difficult to see any justification for this abrupt dismissal. Accordingly, I find as fact that the Complainant’s dismissal resulted wholly or mainly from her pregnancy. The claim of unfair dismissal is well-founded.
In assessing redress, I have taken into consideration the Complainant’s time with the Respondent and her salary at the time in question. I note that the Complainant could not avail of statutory rights because of the termination of her employment with the Respondent. Considering the loss incurred by the Complainant, I award redress of €6,000.
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.
The claim of unfair dismissal is, therefore, well-founded. I award redress of €6,000 [Six Thousand Euro] to be paid by the Respondent to the Complainant.
Dated: 28 May 2019
Workplace Relations Commission Adjudication Officer:
Unfair Dismissals Act – pregnancy - letter outlining substantial problems - well-founded – compensation