Complainant

Respondent

Parties

Michele  Merrigan

Ashimedua Okonkwo under the style and title of Cyril & Co Solicitors

Complainant

Respondent

Anonymised Parties

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Representatives

 Mr. E Morris, BL.  instructed by Mr. Daniel Quinlan, Crushell & Co Crushell & Co Solicitors

 Mr. D Nugent and  Ms. Ellen Walsh, BL.

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 77 of the Employment Equality Act, 1998

CA-00065462-001

16/08/2024

The Complainant was employed by the Respondent as a legal secretary from 3 February 2023 to 21 March 2024 when her employment was terminated.  The Complainant contended that she was dismissed without reasonable explanation, that the excuse given was gross misconduct and that dismissal was given effect without any investigation, disciplinary process or right of appeal.  She contended that the only explanation for her dismissal was that she was at an advanced stage in her pregnancy and so she contended that she was dismissed on the grounds of gender (being pregnant and proposing to take maternity leave).

The Respondent denied the complaint in its entirety and instead contended that the Complainant was dismissed for gross misconduct.

In her complaint form, the Complainant stated that she was dismissed due to her pregnancy.  She outlined that she started working with the Respondent in February 2023, that she had a 12 month probationary period and that she successfully completed that probation.  She stated that on 20 January 2024 she was confirmed as pregnant following a hospital visit and that she notified her employer of that fact the following Monday and that she was approximately 4 weeks pregnant at the time.

She outlined that approximately 3 weeks later on 16 February 2024 emailed her information in relation to her maternity entitlements.  She outlined that at that time she had been working alone in the office and was under considerable pressure. She stated that on 21 February she developed a bad headache and attended the GP who gave her a sick note which she provided to the Respondent on the same day.  She stated that this absence was unrelated to her pregnancy but that on Monday 26 February the Respondent emailed her a risk assessment checklist for expectant mothers to be completed and returned to her.

She outlined that on Saturday 2 March the Respondent sent her a WhatsApp message informing her that she could not return to work until she had a doctor’s note confirming what type of work she could do, that she was fit for work and confirming her due date. The Complainant outlined that she obtained the letter from her GP as requested and she was allowed to return to work on 6 March 2024.

The Complainant stated that on 14 March the Respondent emailed her a letter of termination of employment despite her being in the adjacent office.  She stated that she wasn’t previously informed of the issues referred to in the letter, nor was she ever subject to any previous disciplinary sanction as provided for in her contract of employment. She stated that as a result she was never given any opportunity to defend herself or answer the allegations with which she was charged.

The Complainant also stated that gross misconduct was given as the reason for her dismissal in her termination letter, yet she was given one weeks’ notice and expected to return to the workplace to complete that week of work.  She advised tat she emailed the Respondent and explained that she felt it would be best for her and her baby’s health and safety that she would not return to the workplace.

In relation to the letter of termination the Complainant outlined the following:

That in the termination letter of 14 March 2024 the Respondent noted that significant mistakes in the Complainant work had come to her attention and that she listed the following as relevant:

1.      The case of Mr. Ndela – the Respondent alleged that the Complainant gave him the wrong court date which resulted in him missing the correct court date and a bench warrant being issued for him

2.      The impact of this on Mr. Ndela who was a widower and who was arrested and jailed and had significant difficulties in making arrangements for the care of his children

3.      Client B (anonymised as he was not present at hearing)  - the Respondent alleged that the Complainant’s failure to bring to attention the fact that Client B had signed relevant documents resulted in his application for an appeal not being processed and that he was now facing a deportation order as a consequence.

4.      Other Clients – The Respondent alleged that many other clients had phoned in to complaint that the Complainant had not gotten back to them

5.      Mr. Ndela and Client B – the Respondent alleged that as a result of the seriousness of the issues involved both clients were considering reporting her to the LSRA

It was the Complainant’s contention that she had not been given any opportunity to respond to those allegations and that she believed her account of events were highly relevant and in some instances she bore no responsibility for the events as described.

The Complainant Submission

The Complainant submitted that she commenced employment as a Legal Secretary with the Respondent on 03 February 2023 and that her employment was summarily terminated on 21 March 2024, without any investigation, disciplinary process or right of appeal. She was emailed a termination letter by the Respondent as she sat in an adjacent office. The Complainant primarily worked with Ms. Ashimedua Okonkwo (Principal Solicitor) and enjoyed a salary of €12.00 per hour, with the Respondent.

Preliminary Issue - Complaint to proceed under the Employment Equality Act, 1998

The Complainant acknowledged that she had raised a complaint seeking adjudication by the Workplace Relations Commission (“WRC”) under Section 8 of the Unfair Dismissals Act, 1977. However, thereafter she had engaged legal representation and based on advice she instructed her representatives on 14 March 2025, to write to the WRC raising a preliminary concern that the case may be more appropriately adjudicated under Section 77 of the Employment Equality Act, 1998, in that she was dismissed on the grounds of gender (e.g. being pregnant and proposing to take maternity leave).

During the course of proceedings on 24 March 2025, the Adjudication Officer requested supplemental submissions in respect of whether this complaint should proceed as a complaint under section 8 of the Unfair Dismissal Act, 1977, as amended or section 77 of the Employment Equality Act, 1988.

The Complainant outlined her position, that having availed of independent legal advice, that the redress would be more limited under the Unfair Dismissals Act, 1977, on account of her pregnancy, rather than the redress available under Section 77 of the Employment Equality Act, 1998. She submitted that if the Adjudication Officer, were to progress this matter, under the 1977 Act, the WRC would only be required to consider actual loss of earnings, for the period of time the Complainant was available for work. As a consequence of the Complainant availing of maternity leave, there was therefore a risk that this period of time might be precluded from consideration in any consideration of compensation to be payable. And the redress under the 1977 Act, if proven, would be wholly inadequate.

The Complainant submitted that she is a foreign national, and therefore, might be considered a more vulnerable worker, when compared with Irish peers. The Complainant had filed the initial complaint form without the benefit of legal advice and was therefore unaware of the potential additional penalisation she may face as a consequence of being unavailable for work on account of her being pregnant, giving birth, and availing of maternity leave.

It was the Complainant position that the nature of her dismissal, was so unwholly unconnected with any workplace, disciplinary or performance issues that the only reasonable conclusion or inference that can be drawn, is that her dismissal resulted wholly or partially from her being pregnant. She noted the requirement of the WRC to ensure that any compensation payable for a pregnancy related dismissal is effective, proportionate and dissuasive (Case 14/83 von Colson and Kamann v Land Nordrhein-Westfalen[1984] ECR 1891; and also noted Case 79/83 Dorit Harz v Deutsche Tradax GmbH [1984] ECR 1921).

She submitted that the ability of the Complainant, not to be awarded compensation that is effective, proportionate or dissuasive, if a conclusion is reached, that the termination of employment was partially or wholly connected with her pregnancy, would constitute a gross injustice.  On that basis, the Complainant hereby made an application to progress her complaint under Section 77 of the Employment Equality Act, 1998, submitting the argument that she was dismissed on account of being pregnant (a position inherently linked to gender).

The Complainant drew attention to a recent decision concerning a complaint of pregnancy discrimination brought by Naomi Hanlon against her former employer, Emer McGrath (Naomi Hanlon V Emer McGrath (ADJ-00049995)). In that case the complainant, employed as a nanny from August 2020 to December 2023, alleged that her dismissal was due to her pregnancy, which she disclosed in October 2023. The respondent contended that the dismissal was for misconduct related to external business activities. The Adjudication Officer applied key legal principles from the Employment Equality Act, notably that the burden of proof shifts to the employer in pregnancy discrimination cases. The employer must provide clear and cogent evidence that the dismissal was entirely unrelated to the pregnancy.

The Complainant submitted that in his analysis, the Adjudicator found that the respondent failed to meet this burden. The grounds for dismissal – including disputes over the complainant's alleged resignation, involvement in external businesses, and statements in planning applications – were deemed insufficient or lacking credibility. Notably, the Adjudicator criticised the absence of a proper disciplinary process, with the respondent acting as "sole witness, investigator and disciplinary body." Ultimately, the Adjudicator concluded that the complainant was discriminated against on the grounds of her pregnancy and he awarded €55,575 in compensation, equivalent to 15 months' salary, citing the Labour Court's view that pregnancy-related dismissal is "among the most egregious breaches of Employment Law."

The Complainant submitted that should this complaint progress under the 1977 Act, the burden of proof is on the Respondent.

Preliminary Issue – Correction to Respondent name

The Complainant also made application to amend the Respondent’s name. The submission noted that the complaint was filed by the Applicant in person, prior to engaging professional legal services, as against Cyril & Co. Solicitors and submitted that the Respondent, Cyril & Co. Solicitors is Ashimedua Okonkwo practising under the style and title of Cyril & Co.

Her representatives submitted that Adjudication Officers had shown a significant deference to afford them the power to amend a complaint form to ensure that the Respondent named, could be amended, when that Respondent was not prejudiced as a consequence.

It was submitted that in the present case, the Respondent was named on the complaint form, in the manner in which the entity appears as listed, as a firm, by the Law Society of Ireland and that the named Respondent conforms with, for all intents and purposes, the business and marketing representation of the practice.

The Complainant noted a recent case before the WRC (A Lorry Driver -v- A Waste Management Company (ADJ00024354)) which examined the factors that will be reviewed when one party to the proceedings is wrongly named.

 The Complainant further noted that the High Court In County Louth VEC -v- Equality Tribunal [2009] IEHC 370 outlined the circumstances in which proceedings before a statutory tribunal can be amended and held that: “If it is permissible in court proceedings to amend pleadings where the justice of the case requires it, then, a fortiori, it should also be permissible to amend a claim as set out in a form such as an originating document before a statutory tribunal, so long as the general nature of the complaint remains the same.”

The submission also referred to the Labour Court decision in Travelodge Management Limited -v- Sylvia Wach EDA1511 which stated that: The ratio of that case appears to be that the procedures adopted by statutory tribunals in relation to the amendment of non-statutory forms used in the initiation of claims should not be more stringent than those that apply in the ordinary courts. That is in line with the generally accepted principle that statutory tribunals, such as this Court, should operate with the minimum degree of procedural formality consistent with the requirements of natural justice.”  The Court went on to say “it could cogently be argued that in keeping with the decision in County Louth VEC v Equality Tribunal, and by application of the principle of equivalence, the Court should not adopt a more stringent stance in relation to the substitution of parties that is available in the High Court pursuant to that rule.”

The Complainant cited a number of other precedent cases and noted that in the instant case

the Principal Solicitor of the Practice has accepted service of these proceedings, responded to WRC queries on the matter, engaged with the Complainant representatives and was present to defend the claim.  As full acceptance of service was demonstrable, it was unclear what prejudice the Respondent has or might suffer, as a consequence of a minor modification to the name on the complaint form.

The Complainant submitted that to potentially dismiss this complaint, on foot of the practicing style of the Practice no being enunciated on the Complaint form, would constitute a wholly disproportionate and unjust response.

The Substantive case

The Complainant submitted that she commenced employment with the Respondent on 3 February 2023 and that her employment was summarily terminated on 21 March 2024, without any investigation, disciplinary process or right of appeal and that the Complainant was emailed a termination letter by the Respondent as she sat in an adjacent office. The Complainant was employed as a Legal Secretary and primarily worked with Ms. Ashimedua Okonkwo (Principal Solicitor).

The Complainant submitted that the mere fact of the Complainant's pregnancy is sufficient to infer discrimination and so the burden of proof rests with the Respondent. The Complainant contends that she was dismissed without any reasonable explanation provided and that the excuse given was ‘gross misconduct’.

The Complainant submitted that the established jurisprudence in relation to dismissal law in this jurisdiction takes a very restricted view of what constitutes gross misconduct justifying summary dismissal. This is evidenced, for example, by the determination of the Employment Appeals Tribunal in Lennon v Bredin M160/1978 (reproduced at page 315 of Madden and Kerr Unfair Dismissal Cases and Commentary (IBEC, 1996)) wherein the Tribunal states: “Section 8 of the Minimum Notice and Terms of Employment Act 1973 saves an employer from liability for minimum notice where the dismissal is for misconduct. We have always held that this exemption applies only to cases of very bad behaviour of such a kind that no reasonable employer could be expected to tolerate the continuance of the relationship for a minute longer; we believe the legislature had in mind such things as violent assault or larceny or behaviour in the same sort of serious category. If the legislature had intended to exempt an employer from giving notice in such cases where the behaviour fell short of being able to fairly be called by the dirty word ‘misconduct’ we have always felt that they would have said so by adding such words (after the word misconduct) as negligence, slovenly workmanship, bad timekeeping, etc. They did not do so.”

The Complainant submitted that the position of the Respondent that a series of administrative errors could, even if proven, amount to gross misconduct, is unsustainable. Even so, that dismissal should have been carried out with a degree of due process and fair procedure. The Complainant noted that the starting point for any consideration of the right to fair procedures is the Supreme Court decision in Re Haughey [1971] I.R. 217. The Supreme Court interpreted Article 40.3 of the Constitution as encompassing a guarantee of fair procedures for all citizens such that in any proceedings during which a person’s conduct is impugned, that person must be afforded a reasonable means of defending himself or herself.  These reasonable means include guarantees that the person who is the subject of the allegation is: -

• furnished with a copy of the evidence against that person

• allowed to cross-examine the accuser or accusers

• allowed to give rebutting evidence; and

• permitted to address the body concerned in that person’s own defence.

The Complainant further noted that in Flanagan v. University College Dublin [1988] 1 I.R. 724 the High Court considered the manner in which UCD had investigated a charge of plagiarism. The High Court held that the applicant should have received in writing details of the precise charge being made and the basic facts alleged to constitute the offence. She should have been allowed to be represented by someone of her choice, and she should have been informed in sufficient time to enable her to prepare her defence. Barron J. was of the view that at the hearing itself she should have been able to hear the evidence against her, to challenge that evidence in cross-examination and to present her own evidence. The High Court held that she was not made aware of the exact nature of the charge against her or given an adequate opportunity to prepare her case or to present it.

The submission also noted that in Gallagher v. The Revenue Commissioners [1995] 1 I.R. 55 a Customs and Excise Officer was being investigated for the manner in which he conducted his duties. He was accused, inter alia, of having deliberately undervalued a vehicle. He attended an oral hearing and stated that he wished to cross-examine the parties who had carried out the valuations but was informed that it was not intended to call those valuers. He withdrew from the oral hearing. The report of the oral hearing was subsequently produced, and Mr. Gallagher was dismissed. Morris J. in the High Court concluded that the applicant had been deprived of the opportunity of confronting the witnesses whose findings formed the basis for the allegation that he was guilty of undervaluing. The High Court was particularly influenced by the serious nature of the allegations and the potential impact upon the applicant if they were substantiated.  On appeal, the Supreme Court upheld the right of the applicant to be afforded the opportunity of hearing and cross-examining witnesses. Having regard to the seriousness of the charge and the consequences for the applicant the decision to dismiss was therefore taken contrary to the requirements of natural justice and fair procedures and was quashed.

The Complainant submitted that in An Employee v An Employer (ADJ – 0000381) the Adjudication Officer commented as follows: “An appeal is not just an afterthought or a procedure that must be completed as a matter course. It is a very important part of the disciplinary process and the greater the sanction that has been imposed the greater its importance. An appeal allows a dismissed employee the last chance to make their case, highlight any mitigating factors and seek protection for faulty procedures or disproportionality of sanction.”  The Complainant was not afforded a right of appeal.

The complainant outlined her position that a more plausible explanation for her dismissal was her status as a pregnant woman, which presented an inconvenience to the Respondent. She noted that Irish law provides robust protection to women who have been dismissed for any reason related to pregnancy in accordance with its obligation in European law and further noted that it is well established in case law that pregnancy is “a special protected period” and the Labour Court has found that only “the most exceptional circumstances not connected with the condition of pregnancy allow a woman to be dismissed while pregnant.”

She noted that the rationale for this approach is evident from the decision of C-232/09 Danosa v. LKB Lizings SIA [2011] CMLR 45, at 60, the Court held as follows: “It is precisely in view of the harmful effects which the risk of dismissal may have on the physical and mental state of women who are pregnant, have recently given birth or are breastfeeding, including the particularly serious risk that women may be prompted voluntarily to terminate their pregnancy, that, pursuant to Article 10 of Directive 92/85, the EU legislature provided for special protection for women, by prohibiting dismissal during the period from the beginning of pregnancy to the end of maternity leave.”   In the case of Dekkar v. Stichting voor Jong Volwassenen (VJV-Centrum) [1990] ECR 1-3941, the European Court of Justice held that since pregnancy is a uniquely female condition, less favourable treatment on the grounds of pregnancy constitutes discrimination on the grounds of gender.

The Complainant submitted that in the matter of Teresa Cross (Shanahan) Croc’s Hair and Beauty -AND- Helen Ahern [EDA 195] the Labour Court set out at considerable length its understanding of the legal protections for pregnant women as follows: “Since the decision in Dekker the protection afforded to pregnant women in employment has been strengthened considerably in the case law of the CJEU and in the legislative provisions of the European Union. Equality on grounds of gender is now expressly guaranteed by Article 23 of the Charter of Fundamental Rights of the European Union.” The Charter is now incorporated in the Treaty on the Functioning of the European Union (the Lisbon Treaty) and has the same legal standing as all preceding and current Treaties. It can thus be properly regarded as part of the primary legislation of the European Union. She noted that the jurisprudential principle that discrimination on grounds of pregnancy constitutes direct discrimination on grounds of sex is now codified in Directive 2006/54/EC on the Principle of Equal Treatment of Men and Women (the Recast Directive). This Directive provides, at Article 2.2 (c), that any less favourable treatment of a woman related to pregnancy or maternity leave within the meaning of the Directive 92/85/EEC constitutes unlawful discrimination for the purpose of that Directive”. She further noted that the Labour Court in Teresa Cross cites extensively from case 406/06 Paquay v. Societe d’architectes Hoet + Minnie SPRL [2007] ECR 1-8511. The Labour Court held in Teresa Cross that the Court in Paquay pointed out that in accordance with its case law the prohibition of less favourable treatment, on grounds of pregnancy comes within the ambit of both the Equal Treatment Directive and the Pregnancy Directive. The importance of providing real and effective redress in cases where the rights of pregnant workers are infringed was emphasised by the Court at pars 45-47 if its judgment in Paquay. Here the Court said: However, the objective is to arrive a real equality of opportunity and cannot therefore be attained in the absence of measures appropriate to restore such equality when it has not been observed. Those measures must guarantee real and effective judicial protection and have a real deterrent effect on the employer (Marshall, paragraph 24).  Such requirements necessarily entail that the particular circumstances of each breach of the principle of equal treatment should be taken into account. Where financial compensation is the measure adopted in order to achieve the objective previously indicated, it must be adequate, in that it must enable the loss and damage actually sustained as a result of the discriminatory dismissal to be made good in full in accordance with the applicable national rules (Marshall paragraphs 25 and 26).

The Complainant submitted that it is necessary to recall that, in accordance with Article 12 of Directive 92/85, Member States are also bound to take the necessary measures to enable all workers who consider themselves wronged by failure to comply with the obligations arising from that directive, including those arising from its Article 10, to pursue their claims by judicial process.  While recognising that the Member States are not bound, under Article 6 of Directive 76/207 or Article 12 of Directive 92/85, to adopt a specific measure, nevertheless the fact remains, as is clear from paragraph 45 of the present judgment, that the measure chosen must be such as to ensure effective and efficient legal protection, must have a genuine dissuasive effect with regard to the employer and must be commensurate with the injury suffered.

In addition, the Complainant relied on the below factual circumstances in support of their position:

·       That the Complainant began working with the Respondent on 03 February 2023, on an initial probationary period of twelve months

·       That the Complainant then became aware that she was pregnant on 20 January 2024 and informed the Respondent of this on Monday, 22 January 2024.

·       That the Complainant was contacted by the Respondent via email on 16 February 2024, where she was informed of her rights and obligations surrounding her pregnancy

·       That the Complainant asserts that on 21 February 2024, whilst working in the office alone, she began to suffer significant pain arising from a headache and received a sick note from her GP, which was subsequently provided to Ms. Ashimedua Okonkwo, the Complainant’s Principal Solicitor.

·       That on Saturday 02 March 2024, the Complainant received a WhatsApp message from Ms. Okonkwo, informing her that she could not return to work until a doctor’s note was produced, confirming the type of work that she could do, that she was fit to work and her due date. These documents were subsequently obtained and the Complainant was authorised to return to work.

·       That the Complainant received no further communication from the Respondent until 14 March 2024, when she received a letter of termination of employment via email, from Ms. Okonkwo which stated: “Dear Michelle, It has come to my attention that there has been significant mistakes in your duties that makes it unsafe for your employment in Cyril & Co. Solicitors. In particular the issue of Kela Ndela who you gave a wrong date to attend court. The client informed us that he came to the office and you gave him a note stating that his court date was in April, he stated that he was concerned about this and telephoned the office and you further confirmed to him that his court date was to be in April, when his court date was on the 22nd of February. As such the client missed the court date and a bench warrant issued. A bench warrant is documented as a criminal record. As you are aware, the client has to spend the night at Balbriggan Garda Station from 7pm on Sunday 17th of March, in order that he would be produced in the CCJ on Monday 18th of March as an emergency overnight arrest. Mr Ndela is a widower who is caring for minor children. The Garda attended his home to arrest him on foot of the bench warrant and he was unable to make arrangements for a carer for this children. The Garda was within their rights to take him into custody today and arrange for his children to be taken into care. However, they decided to give him a chance to make arrangements for a carer for his young children on Sunday so that he could be arrested. All this would be told in court on Monday in the CCJ and the client would be informing the judge that it was a mistake from the solicitor’s office. This was completely unnecessary if you had only had a proper check in the practice management system. The next issue is in relation to Mr Nwankwo who was relating with you on the 8th of December in relation to his appeal. He had signed the signature page for the appeal and you did not bring this to anyone’s attention and his appeal date passed. This client is now facing a deportation order due to your actions/inactions. Many other clients have telephoned us that they had called and spoken with you and that you had not gotten back in contact with them. The issues of Mr Ndela and Mr Nwankwo are very significant and could cause the clients to report me to the LSRA. In the case of Sayn, the matter was adjourned in the High Court because the documents were not provided to the Judge’s Registrar in the List Room in the requisite time. There are also several other instances wherein we have faced situations in the courts and Tribunals due to your actions and or inactions that has caused a lot of embarrassment for the firm. I as the Principal of Cyril & Co Solicitors is responsible for everything that happens with the clients and things that comes out of this firm and as such, I am liable for the mistakes of my staff. It is regrettable but I have no option but to terminate your appointment with Cyril & Co Solicitors. As what has happened with the cases of Mr Ndela and Mr Nwankwo amount to gross misconduct. Please note that this is not a castigation on your person. Thank you for your time in Cyril & Co Solicitors. Your employment ends on Thursday 21st of March at 5.30pm. The Accountant would pay all your entitlements at the end of March when the salaries are paid.”

The Complainant contends that she was not previously informed of the issues that were mentioned in the letter, nor did she receive a verbal warning, written warning or a final written warning as per Part 3 of her employment contract.  She maintains that she was not afforded the right to appeal the decision as stated in Part 3 of her employment and she was not given an opportunity to address the issues raised, nor was she suspended pending a full investigation, all in contrary to her contract of employment

The Complainant highly disputes the contents and reasoning provided in the letter of termination received from Ms. Okonkwo, particularly the suggestion that three separate incidents amounted to ‘gross misconduct’

The Complainant asserts that the suggestion that she provided Mr. Ndela, a client of the Respondent with the wrong date to attend court, following his initial hearing in December 2023, is entirely false. She maintains that she met Mr. Ndela in January 2024 and advised him that while the Company’s google calendar stated a return date of 22 April 2024, he would need to confirm the return date with Ms. Okonkwo, as neither the office system, nor LEAP contained details of such, which was highly unusual.  She submitted that Mr. Ndela failed to confirm the date with Ms. Okonkwo and subsequently missed the hearing as a result. Further, the Complainant attests that Ms. Okonkwo did not attend the hearing that was missed by Mr. Ndela, instead instructing a barrister to attend on her behalf, and was therefore unaware that Mr. Ndela had not attended. Ms. Okonkwo only became aware of Mr. Ndela’s absence on 14 March 2024, the date that the Complainant received her termination letter. The Complainant asserts that had the barrister notified Ms. Okonkwo that Mr. Ndela failed to show up for the hearing, the entire situation could have been avoided.

The Complainant also highly disputes the second reason provided for her termination, namely that an appeal date had been passed because of her failure to bring to attention that a document had been signed by Mr. Nwankwo.  It is asserted by the Complainant that she was on annual leave on the date that Mr. Nwanko’s appeal needed to be lodged. Further, before taking leave, the Complainant ensured that the folder with the relevant letter was placed within the documents that Ms. Okonkwo needed to finalise. The Complainant also maintains that she informed her colleague, Alfred, to ensure Ms. Okonkwo was aware of such appeals, reminding him that they are on a list on the system and for all appeals to be sent during the Christmas period. In these circumstances, the Complainant submitted that she fails to understand how her behaviour in this instance amounted to gross misconduct.

Finally, the Complainant rejects the Respondent’s suggestion that documents were not presented to the High Court in a timely manner due to her oversight and lack of awareness, the third example contained within the termination letter The Complainant reiterates that again, all relevant documents were placed on Ms. Okonkwo’s desk for her attention, and that the Complainant reminded Ms. Okonkwo of this on multiple occasions. The Complainant submitted that the deadline was missed due to Ms. Okonkwo’s own failure to present such to the High Court in a timely manner, rather than the Complainant’s oversight.

The Complainant outlined that she has been unsuccessful in her search for work following her termination, despite multiple applications. In an attempt to mitigate her loss and secure employment, the Complainant reached out to Ms. Okonkwo for a letter of reference on 07 June 2024 but had yet to receive response as at the date of submission.

The Complainant submitted that, for the reasons outlined the Complainant’s claims are wellfounded and ought to be upheld.

Additional Representations at Hearing

The Complainant Representative outlined that in relation to the change of legislation the Complainant had originally taken advice from a Brazilian lawyer and that it was only when she engaged Irish representation that it became clear that the case should have been submitted under the Employment Equality Act.  Her representative drew attention to the fact that the firm came on record in March 2025 and almost immediately alerted the WRC and the Respondent of their request to amend the legislation.  It was also pointed out that the substance of the equality complaint was contained within the original complaint and therefore no prejudice would be suffered by the Respondent.

Witness evidence – the Complainant

The Complainant gave evidence that she commenced employment with the Respondent on 3 February 2023 as a legal secretary, earning €12 per hour.  She informed the Respondent of her pregnancy on 22 January 2024 and that after she did so the respondent attitude towards her changed significantly.  She stated that she was just a few weeks pregnant at the time and that when she gave the letter confirming her pregnancy to the Respondent, she told her to just leave it on the desk.

The Complainant stated that up until then she had never had a disciplinary meeting and that everything between her and the Respondent had been normal.  However, she gave evidence that thereafter she received correspondence from the respondent in relation to her maternity entitlements and that the Respondent kept asking for her due date and asking how long she would be out when she went out sick. 

She stated that she received frequent queries and that she found this very embarrassing.  She stated she was made to feel guilty for being pregnant as if she was disturbing everyone.  She stated that these queries sometimes came in the form of messages or emails but at other times they were by phone call or in front of colleagues.  She stated that the Respondents concerns seemed to her to be a bit exaggerated to the point where she even received calls on a Saturday.  She stated that the first time she was asked for the dates of her maternity leave was immediately after she had advised of her pregnancy and received the email regarding her entitlement.  She stated that she regularly received requests for that information afterwards.  The Complainant stated that the Respondent had said that she didn’t want to be responsible if anything happened.

The Complainant gave evidence that the Respondent issued her with forms relating to her pregnancy to be completed and returned. She gave evidence that the Respondent didn’t allow her to return to work from sick leave as she had not completed the risk assessment and required medical certification that she was fit to work, together with details of her due date.  She confirmed that she did attend her GP and did provide the required information.  She also gave evidence that she took annual leave on some occasions to cover her sick leave as the Respondent had complained that she was off work too much.

The Complainant confirmed that she was hospitalised twice during the period and that as a result the Respondent advised that she was very concerned and did not want to be blamed if anything went wrong.  The Complainant gave evidence that she was becoming very stressed and upset because of the constant questioning.

The Complainant gave evidence that on the day of her dismissal she received a message from the Respondent at 8.26 am which said, “we must have another day to catch up” and that this referred to an event which had taken place in July 2023 for a staff member who left.  She stated that this was out of the ordinary and was “very weird”.  She stated that one week earlier the Respondent had complained that she was sending her too many emails, that she was changing things without her permission and that she should look for another job.  She also stated that the Respondent had said that before she was a year in employment she should have sacked her and that she regretted not doing so.  The Complainant stated that a lot had changed and that it seemed the Respondent was upset with her and that everything she did was wrong.

The Complainant confirmed that the office was always extremely busy and was quite disorganised and that she felt the Respondent was overwhelmed.

The Complainant gave evidence that on 14 March 2024 the Respondent returned to the office between 3 and 4 pm, having been at a hearing in the morning.  She advised that she was very busy and not to be disturbed.  It was the Complainant’s evidence that Mr. Ndela arrived a little later and that he was a bit agitated and he wanted to talk to the Respondent because she hadn’t answered calls and messages from him.  She stated that he advised that the police had called to his house and were going to arrest him.  The Complainant stated that she advised him that the Respondent was present and that she would ask her to speak to him.

The Complainant stated that she felt intimidated by the client as he wanted to go straight to the Respondent’s office and he wanted to look at the computer screen.  She stated that he did not attend court as he had no advice available and had received the wrong date. 

The Complainant gave evidence that the Respondent attended the ground floor are and met with Mr. Ndela, contacted the garda and advised Mr. Ndela to return home while she sought to address the matter.  She advised that she never call Mr. Ndela stupid or accused him of being drunk and that she did not berate him.  She stated that she was “super scared” and that she was shaking.  She gave evidence that she was “fired” after he left, that she resumed her work and that the Respondent sent her an email terminating her employment.  She stated that approximately 20 minutes after she received the letter she went to talk to the Respondent but the Respondent told her to go to the WRC.  She stated that when she asked what that meant the Respondent replied that she didn’t have time and told her to just go.

The Complainant gave evidence that she went to gather her belongings and say goodbye to her colleague and that as she did so Mr. Ndela returned with his daughter and wanted to talk to the Respondent again.  She advised that she told Mr. Ndela that she could not remain, that she had been fired.  She phoned the Respondent to advise of his attendance, sent him up to meet her, returned the keys and left.

Cross Examination of the Complainant

Under cross examination the Complainant gave evidence that the relationship between her and the Respondent was not a close relationship, she accepted that they were always sending messages but stated that it was always kept professional.  She acknowledged that she had met the Respondent’s daughter at a social event prior to her taking up work with the Respondent and that she had given her information about church activities where many Brazilians attended and that while they were not friends they had been present at a small number of common social events.

The Complainant confirmed that she did receive emails from the Respondent after she had advised of her pregnancy and that these emails were always enquiring if she was ok. She also confirmed that she had attended the hospital during her early pregnancy because the respondent was always complainant about her absences.  She confirmed that on 1 Mar she attended the hospital because the GP was closed and the Respondent was insisting on receiving a letter in relation to her health issues in order for her to stay working.  She stated that she used her lunch time to stay waiting in the hospital.  The Complainant then confirmed that she had confused two different dates and advised that by that date she had already provided the Respondent with the GP letter confirming her fitness to attend work.  She stated that on the day in question she had attended the GP seeking a further letter but that the GP was not present, so she had returned to work.  She confirmed that she got a pain later that day and had to leave work to attend the hospital.

The Complainant confirmed that she had passed her probation on 16 February 2024 and that this was after she had advised the Respondent of her pregnancy.  However, she stated that the Respondent’s behaviour and attitude towards her changed significantly during that time, that the Complainant was “picking on” her and that she told her she should get a new job and that the Respondent stated that she “should have gotten rid” of her.  She confirmed that no one else was present when this was said.

The Complainant gave evidence that she was placed on light duties by the GP and that this mainly involved assistance with heavy lifting and she stated that she considered this normal for any pregnant woman.

In relation to the interactions with Mr. Ndela the Respondent Representative put it to the Complainant that 3 witnesses would give evidence that she had shouted at him and yet the Complainant was denying having shouted.  The Complainant reiterated that she had never shouted at Mr. Ndela, had never called him names or was never inappropriate in her dealings with him.  She stated that any alternative witness evidence would be lies; and she stated that on the first occasion the Respondent was beside her at the time and it was therefore highly improbable that she would have shouted.  She stated that when Mr. Ndela returned she had already been fired and so she simply phoned the Respondent to advice that he was looking to speak, and she left the building.

The Complainant confirmed that the first time she was made aware that she had been dismissed because of her alleged behaviour was on the day of the first hearing in the WRC.  She stated that the letter of dismissal made no reference to any issues regarding her behaviour.  She confirmed that she was not denying that she had given Mr. Ndela the wrong court date but that she emphatically denied that she had ever shouted at him.

Closing Remarks

The Complainant representative pointed out that once the Complainant had established a prima facie case of discrimination the burden of proof shifts to the Respondent to prove otherwise.  He stated that there was a real question of credibility in relation to the Respondent position as to why she alleged she had dismissed the Complainant. He noted the inconsistencies between the reasons given in the letter of dismissal and the reasons outlined in the Respondent submission and noted that this was received “late in the day”.  He also noted the inconsistencies between the evidence of Ms. Ndela and Ms. Coffy in relation to the events that occurred on 14 March.  He proposed that in all the circumstances the Respondent had not discharged the burden of proof and asked that the Adjudication Officer find in favour of the Complainant.

The Complainant representative also noted what he described as a “clear inequality of arms” between the parties, noting that the Complainant was a foreign national with language challenges while the Respondent was a qualified solicitor who held herself out as competent.  He stated that if ever there was a case where the Complainant required legal advice this was it.  He submitted that the matter was in the hands of the Adjudication Officer but requested that consideration be given to ensuring that compensation was proportionate and dissuasive, in line with case law.

The Respondent submitted that the Complainant was employed by Cyril & Co. Solicitors since January 2023.  The Respondent submitted that the Complainant informed the Respondent on 20 January 2024 that she was pregnant.  The Complainant subsequently completed her 12-month probationary period on 3 February 2024 as the Respondent was satisfied that the probation had been satisfactorily completed.  The Respondent noted that it was immaterial to the Respondent that the Complainant was pregnant, that it was not a factor when passing the probation and that it would not and di not in any way become relevant to the Respondent’s later decision to terminate the Complainant’s employment for gross misconduct on foot of incidents that happened on 14 March 2024.

Background

By way of background to the complaint the Respondent set out the following events:

·       That the day of the dismissal started with a positive and cheerful communication between the Respondent (Ms. Okonkwo) and the Complainant as was the normal way of things and that the Respondent had had no intention of terminating the Complainant’s employment

·       That there had been a good relationship between the parties with attendances at staff lunches and family connections

·       That the Complainant had claimed that from the time she informed the Respondent of her pregnancy the relationship had changed.  The Respondent drew attention to a message sent by the Respondent to the Complainant on 2 March in which the Respondent asked the Complainant to provide a GP certificate which would state that the Complainant was fit to work.  The Respondent submitted that what had transpired at the time was that the Complainant had informed the Respondent that she had been so unwell that she had been taken to hospital.  The Respondent felt that she should make very sure that the Complainant was fit and able to return to work before letting her do so as her condition had obviously been concerning enough that it required that she be taken to hospital.

·       That in the WhatsApp messages exchanged between the parties in the period 19 January to 14 March 2024 it was clear that a good relationship had existed.

·       That it was clear from the communication of 2 March 2024 that the Respondents primary concern was very much about the care and wellbeing of the Complainant.  The Respondent noted that Ms. Okonkwo was herself a mother of 6 and had experienced difficulties in pregnancy and was therefore concerned for both mother and baby in the current circumstances.

In relation to the events of 14 March 2024 the respondent submitted the following:

·       That on 14 March, their client, Mr. Ndela visited their office to discuss his court matters

·       That the Complainant had previously provided him with incorrect information regarding an earlier hearing date and this had led to significant confusion and distress for him

·       That on 14 March Mr. Ndela spoke to the Complainant and told her that because of the incorrect information given to him about an important court date, he had not attended court on the scheduled date, and so members of An Garda Siochana had attended his home and arrested him in front of his minor children.  The Respondent submitted that Mr. Ndela’s absence from court was caused by the Complainant’s failure to provide him with the correct information and as a result he was to be detained overnight in a garda station in order to produce him in court the next morning.  The Respondent submitted that this had caused him great distress, particularly since his wife had recently died and he was doing his utmost to be there for his children.

·       That on 14 March when Mr. Ndela explained to the Complainant what had happened, the Complainant began berating Mr. Ndela in a raised voice and belittling him and verbally abusing him, including accusing him of being drunk.

·       That she did this to the extent that Mr. Ndela broke down in tears.

·       That from upstairs the Respondent heard that something was going on downstairs and she came down to investigate.

·       That the Complainant said to her that Mr. Ndela had said that she, the Complainant had given him the wrong court date.  Mr. Ndela in broken English repeated that the Complainant had given him the wrong court date and that the Gardai had arrested him and that he had spent the night in prison.  He said that he was fearful he would be arrested again, and the Respondent took immediate steps to ameliorate the situation.

·       That on the day Mr. Ndela decided to go home and get his older daughter so that she could assist him with translations and explanations and that when they returned he brought a ‘Post-it’ note, handwritten by the Complainant, showing the incorrect date.

·       That Mr. Ndela showed this to the Complainant and that despite having time to compose herself while the client went home she again began shouting at him and his daughter, berating him and accusing him of being drunk.

·       That the Complainant said he was stupid and asked him why he had not taken note of the date when he last appeared in court.  When shown the ‘Post-it’ the Complainant put it in the bin.

·       That at all times the Complainant denied that she had given an incorrect date to Mr. Ndela, and that she continued to shout at him and tell him that it was all his own fault. Only later when the post it was retrieved from the bin did she acknowledge that she had given Mr. Ndela the wrong date.

·       That when Ms. Okonkwo heard the Complainant loud shouting coming from the downstairs office she made her way down to see what was happening

·       That Ms. J Coffey, a Paralegal who was also in an upstairs office heard the Complainant shouting and came downstairs to see what was happening

·       That Ms. Okonkwo was horrified by what she heard and that she brought Mr. Ndela and his daughter upstairs to her office to speak to them and calm the situation.  Mr. Ndela was extremely upset and having calmed the situation Ms. Okonkwo next assessed matters and the events she had witnessed.  She was also shocked and upset that this had happened

·       That Ms. Okonkwo noted that there were many factors to be considered including that (i) the Complainant had verbally assaulted the client even whilst others were in the office (the concern being that she might behave even more outrageously towards clients when no-one else was present), (ii) that the Complainant had time in which to compose herself while Mr. Ndela went home but instead she continued with berating, belittling and verbally assaulting him and (iii) that even when Mr. Ndela had insisted that the Complainant had given him the wrong court date, she had insisted on telling him that he was stupid, that it was all his own fault and that he was drunk, and (iv) that Mr. Ndela would obviously give a very bad report to his friends in the community about how he was treated by the Respondent’s law firm.  The Respondent very quickly came to the conclusion that she had lost all trust and confidence in the Complainant and that she had no option but to terminate her employment immediately.

The Respondent submitted that the decision to dismiss the Complainant was not taken lightly.  Ms. Okonkwo submitted that she had worked hard building up her practice over a 12-year period and that during that time she had fostered a supportive and inclusive workplace for employees.  The respondent submitted that she had made sure that staff enjoyed their work and that from time to time they all attended office outings together.  She had also worked hard to build a welcoming, warm, receptive environment for clients attending for advice and help and the actions of the Complainant were hugely disreputable for the firm.

The Respondent submitted that the fact that the Complainant had been in employment for more than 12 months meant that she knew the level of professionalism expected of her.  The Respondent further submitted that of the utmost importance is the standard of professionalism maintained by the Respondent’s law firm and the highest standard of legal practice and that as with all law firms, maintaining this standard ensures the necessary business continuity.

The Respondent submitted that it was her belief that no other law firm in Ireland would have any other response other than to terminate the employment of a member of staff who had shouted at, berated and belittled a client and called him drunk and stupid.

The Respondent acknowledged that she should not have listed any prior performance issues in the letter of termination and that she should instead have recorded the simple fact, that the Complainant’s behaviour on 14 March 2024, had led the Respondent to lose all trust and confidence in the Complainant and that it was conduct amounting to gross misconduct, warranting dismissal.  She submitted that the events of the day had upset and unbalanced her and as a result what was written in the letter of termination was in error.

The Respondent noted that every dismissal is presumed to be unfair unless the employer can show substantial grounds justifying it and that if misconduct is proven then the decision of the employer will be evaluated for reasonableness – the question being whether the dismissal was within the range of reasonable responses of a reasonable employer in those circumstances.  It was the Respondent position that it was. 

The Respondent also noted the definition of what constitutes gross misconduct as referring to “conduct by an employee that is so serious it justifies immediate dismissal, even for a first offence, and without the usual notice period.”  The Respondent cited the Employment Appeals Tribunal where it stated that “gross misconduct must be something very serious indeed, perhaps criminal or quasi-criminal in nature” and cited relevant case law.

The Respondent submitted that much of the case law illustrates that gross misconduct is behaviour that strikes at the heart of the employment contract, making it untenable to continue the employee in the job and further noted that it is generally characterised as conduct that may permit summary dismissal, as permitted by Section 8 of the Minimum Notice and Terms of Employment Act 1973 in cases of misconduct.

The Respondent submitted that she was aware that it was entirely relevant that the Complainant worked on many occasions alone in the office and that she (the Respondent) would from then on, never have the required level of confidence that the Complainant would at all times behave towards the firm’s clients in a professional and courteous manner.  She knew that to leave the Complainant alone in the office risked exposing clients to the type of treatment the Complainant had shown Mr. Ndela.

The Respondent submitted that she came to work that morning with no intention of terminating the employment of the Complainant, that until that day they had enjoyed a good relationship which the Respondent believed would continue after the Complainant passed her probation.  She submitted that no appeal against the decision was received.

In conclusion the Respondent submitted that the decision to terminate the Complainant’s employment fell within the range of reasonable decisions or reasonable responses open to the Respondent and the facts arising meant that the Respondent had little option but to proceed with the dismissal.  In these circumstances, it was the Respondent position that this was the only appropriate decision.

The Respondent noted that while the law provides robust protections for pregnant employees, these protections do not grant immunity from dismissal for valid reasons, which are unrelated to pregnancy.  The Respondent’s stated position was that the Complainant must prove a link between the pregnancy and the decision to dismiss, or at least enough facts from which unfairness in the dismissal may be inferred in the context of a pregnancy dismissal.  The Respondent submitted that it is not enough that the employee was pregnant and was dismissed in the same general timeframe; she must show that the pregnancy was at least a contributing factor to the decision. 

The Respondent submitted that in the instant case, the decision to terminate had nothing at all to do with the pregnancy and that it was a reasonable response given that the Respondent no longer had trust and confidence in the Complainant.

Witness Evidence – the Respondent (Ms. Okonkwo)

The Respondent gave evidence that the Complainant advised her of her pregnancy in January 2024 and that she was overjoyed at the news as the Complainant was concerned about her ability to become pregnant.  She stated that in her culture a baby is considered to be a blessing.  She acknowledged that the Complainant had given evidence that her pregnancy was not high risk, but she stated that this was incorrect, that the Complainant had been ill after she found out she was pregnant and had to go to A & E and that this was when she told the Respondent it was a high risk pregnancy.

The Respondent confirmed that she had passed the Complainant’s probation after she had learned of the pregnancy and that the pregnancy was no consideration whatsoever.  She described the Complainant as having a lovely personality and as the team member who booked the lunches, bought flowers and knew everyone’s birthday.  She stated that she viewed staff as people who work with her and not for her.

The Respondent outlined that she had made efforts to support the Complainant; that she had engaged an external provider to take calls that the Complainant was unable to take due to language difficulties at a cost of €750 per month and that she had facilitated time of for the Complainant when her child was sick and to take her driving test.  She stated that she considered the Complainant to be a friend.

The Respondent confirmed that she did not change her attitude to the Complainant after she advised of her pregnancy and that this was evidenced by her passing the Complainant’s probation, and by the fact that she had invested in her training.  She stated that the maternity leave was paid by the state and not by her.  She stated that it was untrue that she refused a letter to confirm the pregnancy dates as she and the Complainant were “rejoicing together” and that at no time did she refuse a letter.  She stated that once she knew the dates of the maternity leave she could make arrangements for a temporary replacement.

In relation to the events of 1-2 March 2024 the Respondent gave evidence that she was away from the office and that the Complainant phoned her to say she was unwell and had to go to the doctor.  She advised that she had approved her closing the office for that purpose.  She stated that she didn’t hear from her that evening but that the Complainant had sent a message which she hadn’t seen.  She stated that she saw the message on 2 March and sent a reply.

The Respondent confirmed that the Complainant had been ill before and that she had told her to go home.  She stated that she was a mother herself and so she would give every accommodation.  She confirmed that she asked the Complainant to fill out a risk assessment and that once complete they would then discuss what accommodations might be necessary.  She stated that she did not receive the completed form until it came as part of the Complainant’s WRC submission.

The Respondent denied that she repeatedly asked the Complainant about the dates of her maternity leave, she stated that there was no need to do so, that she had already given her documentation regarding her entitlements to time off.

The Respondent confirmed that her office was a very busy work environment, that she was a sole practitioner and that was part of the reason she had engaged a company to take calls, leaving the Complainant to deal with emails. 

The Respondent gave evidence that on the morning in question she had no intention to terminate the Complainant’s employment.  She stated that the Complainant had communicated the wrong court date to Mr. Ndela and that this resulted in a bench warrant being issued against him and the guards attending his home to execute that warrant.  She stated that Mr. Ndela was in custody for some period of time.

She confirmed that on 14 March 2024 Mr. Ndela came to the office and that at the time of his attendance she and Ms. Coffey were upstairs.  She advised that the Complainant and Mr. Ndela were downstairs and that she could hear shouting.  She stated that she thought something was wrong and that as she made her way downstairs, she heard the Complainant berating Mr. Ndela.  She gave evidence that the Complainant said he was drunk, was stupid and that he had been in court and so should have taken down the date himself.  The Respondent stated that the Complainant told Mr. Ndela that she did not give him a wrong date, and she kept shouting at him that he was a liar and that he had been drunk on the day he had previously attended the office. 

In relation to the Complainant’s evidence that she felt threatened by Mr. Ndela the Respondent stated that on the day in question the client wasn’t aggressive and that it was the Complainant who continually shouted at him and shouted over him.  She stated that the whole interaction was a shock.   The Respondent outlined the steps she took to then address the client’s issue re the bench warrant and Mr. Ndela left.

The Respondent stated that a short while later Mr. Ndela returned with his daughter and that he brought the post it with the date on it which had been given to him by the Complainant.  She stated that when the Complainant saw the post it she realised she had given the wrong date but that she began shouting again, saying he was drunk and stupid and that he should have noted the date for himself.

The Respondent advised that Mr. Ndela was in tears, that he hadn’t drunk since his wife had died and he was very upset at the accusation.  She stated that she brought him and his daughter upstairs to her office.

The Respondent gave evidence that she did not dismiss the Complainant after the first encounter with Mr. Ndela but after the second incident.  She stated that it was all just too much, that she had a grown man crying in her office and that she had to deal with the guards.  She stated that she went upstairs and wrote the letter but that in the heat of the moment she failed to include =a reference in that letter to the Complainant shouting at her client.  She stated that she holds a meeting on Mondays where everything gets discussed.  She stated that mistakes happen and that she would never have dismissed the Complainant because of the wrong date but that she did so because of her shouting at the client.  She stated that the Complainant was often alone in the office, that she was the first point of contact for clients and that after what she had witnessed she could no longer trust her.

In relation to the Complainant evidence that she had said that she should have sacked the Complainant before her probation was up, the Respondent stated that this was untrue and that it did not make sense in the context of her having passed the Complainant’s probation.

Cross examination of the Respondent

In response to the Complainant’s representative the Respondent confirmed that she would hold herself out as a competent solicitor.  She confirmed that she did not recall precisely when the Complainant advised of her pregnancy but that it was in January.

The Complainant representative put it to her that there was no evidence that the Complainant’s pregnancy was categorise as high risk to which she replied that “we women talk about issues such as menopause and other issues and that there was no requirement to write it down.  She confirmed that there was no medical report identifying any issue with having children but that the Complainant had advised her that she had problems conceiving.  She acknowledged that the Complainant already had a child but that there was a gap between the two pregnancies and the Complainant was now older.

The Complainant representative drew attention to the company disciplinary Procedure and the right of appeal to a Board of Management contained therein and the Respondent replied that she did not appreciate that the Complainant had taken a case as an equality issue.  In relation to her earlier testimony regarding flexibility with annual leave the Complainant representative noted that the Complainant had to take annual leave to cover her maternity related sick leave, to which the Respondent replied that it “was neither here nor there”.

In relation to queries as to why she continually raised the dates of maternity leave with the Complainant the Respondent stated that the Complainant was required to give her the dates of her maternity leave but that it was “neither her nor there” to her.  The Complainant representative put it to the Respondent that it could not be described as “friendly” or concerned to expect the Complainant to go up and down stairs or to send WhatsApp messages on a Saturday raising the issue of the dates of maternity leave.  The Respondent stated that she sent the message on a Saturday because that was the kind of friendly relationship they had and that it could also be seen in the tone of her email exchange on 4 March.  She stated that the Complainant representative was a man and therefore could not “understand the issues of women”.  The Adjudication Officer asked the Respondent to curtail such comments.

The Complainant representative stated that he could not understand what part of the message of 4 march was considered by the Respondent to be “friendly” and asked if it was the part where she was advised she had to get an assessment.  The Respondent did not make any response.  The Complainant representative noted that the Complainant had handed back the file and the Respondent replied that those kind of forms require a one to one conversation and not a file placed in a cabinet.

The Respondent stated that she was not overwhelmed at the time, she acknowledged that she had written that in a message but stated that the context was important as she may have just come out of a prison or a court but that she was not overwhelmed while sitting in an office. 

The Respondent confirmed that Mr. Ndela was taken in to custody after the St Patrick’s Day public holiday and she confirmed that she had instructed a barrister in relation to his case and that the barrister had attended the original court with Mr. Ndela and who made the return in the matter.  She confirmed that she had not investigated the dates contained in that return.

She confirmed that on the day of the incident her focus was on Mr. Ndela. 

The Complainant representative asked why she had not put measures in place to ensure that the Complainant did not deal with Mr. Ndela after the first alleged incident.  The Respondent stated that she was on the phone that it was a short timeframe and that it was all too much and very shocking on the day.  The Respondent did not accept that there was a changed atmosphere with the Complainant once her pregnancy became known and she clarified that she asked for medical certification as it would have been irresponsible of her to allow the Complainant to return to work without that medical advice.

The Respondent confirmed that she did not put the real reason for the dismissal in the letter of dismissal, that she was under a lot of pressure and that she was very stressed.

The Complainant representative put it to the Respondent that in all the circumstances, having regard to the changed atmosphere, no disciplinary or investigation process and the Complainant’s status as a pregnant woman it was easy to conclude that the Complainant had been dismissed because of her pregnancy.  The Respondent replied that he was “very wrong about that”, that if the Complainant had remained in work up to her maternity leave the stated would pay the cost of her maternity leave so there was no issue for her.  She stated that if she had not treated Mr. Ndela as she did the Complainant would still be in her employment. 

The Complainant representative put it to the Respondent that within less than 60 minutes she had written a letter of dismissal in circumstances where she was so busy on the phone to the guards and dealing with Mr. Ndela.  He stated that it was evident that the letter was entirely predetermined and contrived.  The Respondent replied that she had been a legal secretary and that as things came into her head while she was typing she included them in the letter and that she completed the letter in approximately 5 minutes.

The Complainant representative put it to the Respondent that the behaviour described did not amount to gross misconduct, to which the Respondent replied that the Complainant had threatened and verbally assaulted her client and brought him to tears.  The Complainant representative pointed out that gross misconduct had been viewed by the courts as being akin to a criminal act to which the Respondent replied that the Complainant had threatened the client.

In response to a query as to how the Complainant might have appeal her dismissal the Respondent stated that she could have appealed directly to her.

Witness Evidence – Mr. Ndela

Mr. Ndela gave evidence that during his first visit to the office on 14 March he was on his own.  He stated that the guards had come to his home.  He stated that the Complainant was present when he arrived and that he advised her that she had given him the wrong date for his court hearing.  He stated that she had responded that she had not given him the wrong date but that he had pointed to the post it in his hand.  Mr. Ndela stated that she took the post it and put it in the bin.  He stated that the incident “pained” him and that he went home to get his daughter because she had better English.

Under cross examination Mr. Ndela clarified what he meant by “pained” as “if somebody lied” to him.  He stated that he remained cool and did not speak to the Complainant in a high voice.  He stated that the Respondent only came down during his second visit.

Witness Evidence – Ms. D Ndela

Ms. Ndela confirmed that she attended the office on 14 March with her Dad at his request.  She stated that he asked the Complainant why she had given him the wrong court date and that it was all confusing.  She confirmed that throughout the conversation Mr. Ndela remained cool and calm and did not raise his voice.  She stated that when he asked about the wrong date the Complainant came towards him saying he was drunk and stupid.  She stated that he responded that he was not drunk and that he just came to ask about the court date.  She stated that the Respondent came and brought them upstairs.

She confirmed that she did not believe the Complainant was fearful as she walked towards Mr. Ndela and made the comments.  She stated that Mr. Ndela was not aggressive but that he just needed to know.  She stated that in general the volume was low and that only the Complainant was shouting.

Ms. Ndela confirmed that she did have a personal relationship with the Respondent as she and the Respondent’s daughter were friends.

Witness Evidence – Ms. Coffey

Ms. Coffey gave evidence that she was in her office upstairs on the day of the alleged incidents.  She stated that she believed she had witnessed the first incident as at the time Mr. Ndela was on his own.  She stated that she heard shouting and came out of her office and leaned over the banister to see what was happening.  She gave evidence that she turned to go get the Respondent but that she was already coming out of her office.  She confirmed that the respondent went downstairs. 

Ms. Coffey confirmed that she did not hear what was said and the volume wasn’t loud enough to hear.

Under cross examination Ms. Coffey confirmed that she had worked for the Respondent for 3 years, that she considered herself loyal to her employer but not fearful of her employer.   She confirmed that it was possible to hear sound throughout the building and that on the day she could hear two voices but that she could not hear what was being said.

Closing Remarks

The Respondent representative stated that the Respondent had only done what she was entitled to do, that she was entitled to plan for the eventual maternity leave of the Complainant and that not only was she entitled to know the maternity leave but she was also obliged to carry out a risk assessment in the circumstances.

The Respondent representative accepted that the detail of the misconduct was unclear in the letter of dismissal but noted that everything raised in the course of the hearing pointed to misconduct on the part of the Complainant.  She stated that the question for the Adjudication Officer was if the Complainant was dismissed for being pregnant and that it was not a question of how inelegant the procedure might have been.

The Respondent representative acknowledged that there were small inconsistencies in the evidence on the Respondent side but noted that this was not unusual.  She noted that there were no witnesses other than the Complainant herself and that her evidence was mere assertion and that conveniently there were no supporting documents.

The Respondent representative noted that the Respondent relied upon gross misconduct as the reason for dismissal and stated that any employer whose client was issued a bench warrant resulting in a criminal record and having their client berated would have acted similarly.  She stated that what had occurred could never be described as tolerable behaviour.

The Respondent stated that the Complainant had not established a prima facie case of discrimination but noted that if the Adjudication Officer found that she had then the Respondent had rebutted discrimination as the reason for dismissal.  The Respondent representative noted that gross misconduct was more than sufficient to warrant dismissal and the circumstances that led to the Complainant’s dismissal were clearly unrelated to her pregnancy.

I have considered carefully all submissions verbal and written, all supporting documentation, together with representations made and evidence given by witnesses at hearing.

 Preliminary Matters

1.      Amendment of title of Respondent

In her submission the Complainant sought a change to the title of the Respondent as submitted on her original complaint form.  By letter of 16 April 2025 the Respondent confirmed that it agreed to the amendment requested.

In the circumstances of the name clarification provided and the acquiescence of the Respondent I have amended the Respondent name accordingly.

2.      Application for the complaint to proceed under Section 77 of the Employment Equality Act, 1998

In her submission the Complainant made application for the complaint to be heard under Section 77 of the Employment Equality Act, 1998 rather than as originally submitted under the Unfair Dismissals Act.  It was the Complainant case that she submitted her complaint without recourse to legal advice and that the substance of the complaint was the same and therefore posed no disadvantage to the Respondent.

The Respondent agreed to the change by letter of 16 April 2025.

In the context of the Respondent agreement and in the context that the substance outlined in the original complaint was broadly the same I have accepted the proposal from the Complainant and have considered this complaint under Section 77 of the Employment Equality Act, 1998.

3.      Initial Burden of Proof Under the Employment Equality Act:

The Complainant submitted that she was discriminated against on the grounds of gender and that this related to her dismissal by the Respondent on 14 March 2024. 

It is settled law that the onus is on the Claimant to initially establish an arguable case of discrimination before the Respondent is required to disprove that discrimination has taken place.  To this end it is for the Complainant to identify and establish facts of sufficient significance to raise a presumption of discrimination to discharge the initial burden of proof under section 85 A of the Employment Equality Act. 

Section 85A of the Act deals with the Burden of Proof and states as follows:

“85A.—(1) 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 evaluating the evidence before me, I must therefore consider if the Complainant has established a prima facie case pursuant to Section 85A of the Acts. 

This requires the Complainant to set out in the first instance, facts upon which she can rely in asserting that prohibited conduct has occurred in relation to her.  It is only when such a prima facie case has been established that the onus shifts to the Respondent to rebut the inference of discrimination raised.

In that regard there are three specific criteria which need to be met in order to show that a prima facie case has been established, namely:

1.       Membership of a discriminatory ground (e.g. race, gender, family status).

2.      Evidence of specific treatment by the Respondent.

3.      Evidence that the treatment received by the Complainant was less favourable than the treatment someone, not covered by the same ground(s), would have received in similar circumstances.

A prima facie case is established only when all three criteria are satisfied and only then the burden of proof shifts to the Respondent to rebut the claim of discrimination. 

The law in relation to discrimination is well established in this jurisdiction:

In Melbury Developments Limited v Arturs Valpeters IEDA09171 it was stated:

"...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 85 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. "

In Southern Health Board v Mitchell the Labour Court considered the extent of the evidential burden which the Complainant, under the Acts, must discharge before a prima facie case can be made out.  It provided inter alia as follows:

“The first requirement is that the Complainant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them.  This indicates that a Complainant must prove, on the balance of probabilities, the primary fact from which they rely in seeking to raise a presumption of unlawful discrimination.  It is only if these primary facts are established to the satisfaction of the Court and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination that the onus shifts to the Respondent to provide that there was no infringement of the principle of equal treatment”.

I noted that the Complainant was a pregnant woman at the time of her dismissal and therefore is clearly covered by the ground of gender under which she took her complaint.

I noted the Respondent position that the Complainant had not set out facts which established a prima facie case. In that regard I noted that the Complainant relied upon the following to ground her complaint of discrimination of the basis of gender:

·       That she had notified the Respondent in or around 20-22 January 2024 that she was pregnant

·       That the Respondent attitude towards her changed significantly after she had thus informed her

·       That this change in attitude took the form of pursuing her for medical certification of her due dates and requiring her to complete a risk assessment in order to remain in work

·       That it was also evidenced in the Respondent being difficult in relation to her sickness absence in early pregnancy, requiring her to get a medical report before allowing her back to work and necessitating her using annual leave to cover that sickness absence

·       That it was also evidenced in the Respondent starting to find fault in her work and expressing frustration with her, in circumstances where this had not previously occurred

·       That it was ultimately evidenced in the behaviour of the Respondent who dismissed her from employment for what was termed gross misconduct on 14 Narch 2024.  It was the Complainant position that the issues identified in the letter of dismissal could not be classed as Gross Misconduct, that no formal disciplinary procedure was followed and that the letter which issued was contrived by the Respondent in advance of any issues arising on 14 March 2024.

It is common case that the Complainant did inform the Respondent of her pregnancy in or around 20-22 January 2024. It is also common case that the Respondent did require the Complainant to provide medical certification of her fitness to return to work after a short sickness absence, to provide medical evidence of her due dates and to complete a risk assessment.  While I accept the Respondent position that she was obliged to conduct a pregnancy risk assessment I do not accept that it was reasonable to require a fitness to return to work certificate from the Complainant after what was a very short absence due to illness.  I am of the view that such a request would not have been made in the circumstances of any other short term sickness absence which was unrelated to pregnancy.  I noted the Respondent position that this was done because the Complainant’s pregnancy was a high risk and I consider that this argument is not supported by any medical evidence.  The medical reports ultimately provided to the Respondent merely refer to the possibility of accommodating light duties during pregnancy and confirmed that the Complainant was fit for work.  There is no evidence whatsoever that the Complainant was experiencing a high-risk pregnancy.

In relation to the Respondent position that she was entitled to make plans for the Complainant’s absence on maternity leave I noted that she pursued the matter of the Complainant’s due dates with a degree of persistence, requesting the information on a number of occasions and, indeed, messaging the Complainant on a Saturday in pursuit of the information.  In considering this matter I noted that the Complainant was approximately 6 weeks pregnant at the time and that she had no legal obligation to provide the Respondent with notice of her due date until 4 weeks prior to that date.  The vigilance with which the Respondent pursued this matter at such an early stage in the Complainant’s pregnancy could only be described as intrusive and was wholly unnecessary and inappropriate.

I considered the question of the attitude of the Respondent towards the Complainant.  Both the Complainant and the Respondent gave evidence of a very different working relationship after the Complainant gave notice of her pregnancy.  However, both parties described a positive working relationship prior to that time.  I reviewed the extensive documentation provided showing daily messages between the parties and those messages bear out that a cordial working relationship existed up to January 2024.  I reviewed in some detail the messages between the parties thereafter and noted no significant change in the tone or content of the messages. There was no evidence advanced by either side in relation to any one to one encounters at that time.

It is a fact that the Respondent dismissed the Complainant on 14 March without recourse to any formal disciplinary or investigation process, that such dismissal took the form of a letter of dismissal sent via email while the Complainant and the Respondent were both present in the building.  There was no semblance of due process.

Having considered the totality of the above I am of the view that the Complainant has set out sufficient facts to raise an inference of discrimination on the grounds of gender.  In light of the foregoing, I am satisfied that the Complainant has discharged the evidential burden required to establish a prima facie case and it falls to the Respondent to rebut the inference of discrimination raised.

The Substantive Matter

It was the Respondent position, as set out in her submission, that the Complainant was dismissed for Gross Misconduct and that her dismissal was not in any way related to her pregnancy. 

I considered the dismissal itself and noted that there was no previous history of issues being raised with the Complainant in relation to either her behaviour or her performance of duties.  I noted that no disciplinary meeting was held with the Complainant, no advance notice of the issues of concern was ever provided to her and she was afforded no opportunity to make any representations on her own behalf or provide any explanation that might have changed the outcome of dismissal.

Instead, the only direct evidence of why the Respondent dismissed the Complainant was that which was contained in the letter of dismissal.  That letter clearly sated that it had come to the attention of the Respondent that there had been “significant mistakes in your duties that makes it unsafe for your employment in Cyril & Co. Solicitors.”

The letter then outlined the following errors:

·       That the Complainant had provided Mr. Ndela with a court date in April when in fact the correct date was 22 February.  The letter outlined the consequents arising for the client.

·       That in relation to a second named client the Complainant did not bring to attention that the client had signed his appeal documentation and that as a consequence he was now facing deportation

·       That many other clients had phoned in relation to her not getting back to them

·       That there were several other instances wherein the Respondent faced situations in courts and tribunals due to the Complainants actions/inactions

Based on the above the Respondent concluded that she had “no option but to terminate your employment”.

In submission and at hearing the Respondent sought to resile from this position and instead submitted that the dismissal was in relation to the error regarding Mr. Ndela’s court date and the behaviour of the Complainant towards him on 14 March.  At hearing, and by sworn evidence, the Respondent stated that she would never have dismissed the Complainant for the error but that the dismissal was due to the behaviour of the Complainant who she alleged shouted at Mr. Ndela and accused him of being stupid and drunk.

It is clear to me that although the error which occurred in relation to Mr. Ndela might well be considered to be Gross Misconduct there was no reference in the letter of dismissal to Gross Misconduct.  Instead, the letter referred to a series of errors, some that were never specified, as the reason for dismissal.  If the error in relation to Mr. Ndela was considered as potential Gross Misconduct there was no investigation as to how the error had occurred, who was actually responsible for the error, and whether the barrister involved had any insights on the matter.  It was simply concluded that the Complainant was solely culpable.

The Respondent would have me accept that she was so overwhelmed by what happened on the day that she did not properly think about including the correct reason for the dismissal in the termination letter and that instead she included things as they came to mind.  I do not accept that explanation.  The Respondent is a qualified and experienced solicitor who would fully understand the importance of “getting it right” when it came to the dismissal procedure and the detail contained in the letter of dismissal.  While she did not accept the Complainant representative description of herself as an expert, she did accept that the description of her as competent was appropriate.  No competent solicitor would have made such basic mistakes.

The Respondent sought to rely on the behaviour of the Complainant as the “new” basis for the dismissal and alleged that she shouted at the client and insulted him and called him names.  She and the Complainant had very different recollections of the events in question.  In considering the facts surrounding the events of 14 March I noted that Mr. Ndela did not make any reference to shouting or name calling during his first meeting with the Complainant and did not recall the Respondent being present at all.  Ms. Ndela was not present for that encounter and the only other witness, Ms. Coffey did not hear what was said because the voices were not loud enough.

I am in no doubt that the Complainant provided the wrong court date to Mr. Ndela, she accepted her error.  I am also in no doubt that there was an altercation between the Complainant and Mr. Ndela, however, given the disparity in the evidence of the Respondent witnesses I am unclear as to the severity of that altercation and as to whether the Complainant was dismissed between the two visits.  However, I cannot understand, if as the respondent alleged, the Complainant’s behaviour was the central reason for the dismissal, why it was not included in the letter of dismissal.  She stated that she included things as they came to her mind, yet having just come from a situation where she alleged that the Complainant was extremely abusive to a client, that behaviour did not come to her mind.  I do not find the Respondent account of her reasons for dismissing the Complainant to be credible.

In circumstances where the Respondent, who is a qualified solicitor failed to follow any semblance of due process in relation to a dismissal and failed to accurately record the reasons for the dismissal in the letter of termination I find the absence of such process and the lack clarity for the reasons giving rise to the termination of employment to be fatal to the Respondent’s defence of the inference of discrimination.  Accordingly, I find that the Respondent has failed to rebut the prima facie case of discrimination.

I have found that the Respondent has failed to rebut the prima facie case of discrimination on the ground of gender.  Accordingly, it is my decision that this complaint is well founded.

 Section 82 of the EEA provides that the maximum amount which may be ordered by way of compensation is two years’ remuneration.  The EEA is derived from the following EU Directives: 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation; 2006/54/EC of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast); and 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial and ethnic origin. Therefore, the Von Colson Principles apply, and any award must provide a real deterrent against future infractions.  

 I direct the Respondent to pay the amount of €21,000 to the Complainant as compensation for the discrimination.

Discrimination on ground of gender