DECISION NO: DEC-E/2012/061
PARTIES
Ms. Margaret Behan
(Represented by O' Rourke Reid Solicitors)
AND
Orchard Garden Centre Celbridge Ltd.
(Represented by ESA Consultants)
FILE NO: EE/2009/906
DATE OF ISSUE: 24 May, 2012
1. Dispute
This dispute involves a claim by Ms. Margaret Behan that she was discriminated against by against Orchard Garden Centre Celbridge Ltd., on the grounds of gender, in terms of section 6(2) and contrary to section 8 of the Employment Equality Acts, 1998 and 2008, when she was dismissed from her employment while pregnant.
2. Background
2.1 The complainant referred a complaint against the above respondent under the Employment Equality Acts 1998 to 2008 to the Equality Tribunal on 20th August, 2009.
2.2 In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2008 the Director delegated the case on 23rd of February, 2012 to me, Orla Jones, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts This is the date I commenced my investigation. Written submissions were received from both parties. As required by section 79(1) of the Acts and, as part of my investigation, I proceeded to a hearing on 20th April, 2012.
3. Summary of complainant's case
3.1 It is submitted that the complainant was employed by the respondent, as a full time sales assistant, from 24th January, 2009 to 11th June, 2009. It is submitted by the complainant that, she was told at the commencement of her employment that she would be subject to a probation period of 3 months. She also submits that approximately 3 months after she began working for the respondent, the complainant was assured, by her manager, Ms. A, that she had successfully completed her probation.
3.2 It is submitted by the complainant that she informed her manager, Ms. A, of her pregnancy on 4th of June, 2009 (at which point she was 3 months pregnant).
3.3 It is submitted that on 11th of June the complainant was called to a meeting with her manager and the General Manager, Mr. B, where she was dismissed, it is submitted that she was told "she was not strong enough, not multi tasked and had not sold as well as other members of the team". It is further submitted that the complainant was told she would be paid one week in lieu of notice, plus holiday pay. The complainant submits that she was dismissed solely for reasons related to her pregnancy.
3.4 The complainant submits that she was never given any written forms of appraisal, had no performance reviews and was never given any written warnings during her time with the respondent. In addition, the complainant submits that the only incident where her performance was discussed was an informal conversation on the shop floor where, the complainant's manager, Ms. A, told the complainant that the General Manager was "keeping an eye on her" in relation to her sales and that she should try and make more sales. The complainant submits that she was predominantly assigned to cashier duties and therefore did not have the same opportunity to promote products as if she was on the floor helping customers.
3.5. The complainant submits that she had believed her contract to be permanent and had applied for a mortgage to build a house, on that basis.
4. Summary of respondent's case
4.1 It is submitted by the respondent that the complainant was dismissed (due to underperformance) on grounds of suitability and poor performance, during the probationary period.
4.2 It is submitted by the respondent that the complainant was subject to a 6 month probation period during which she underwent 2 appraisals (copies of the completed appraisal forms were included in the respondent's submission). The first appraisal took place on 17th March, 2009 and showed good performance in many areas but, required improvement in 3 areas. The second appraisal took place on 29th of April, 2009 and showed a marked deterioration in all areas. It is submitted that following this the complainant was informed that poor performance would lead to her probation being unsuccessful.
4.3 It is submitted that the complainant was called to an exit meeting on 11th of June where she was advised that she had failed her probation and was dismissed.
4.4 It is submitted by the respondent that the complainant advised them of her pregnancy 4th June, 2009.
5. Findings and Conclusions of the Equality Officer
5.1 The issue for decision by me now is, whether or not, the respondent discriminated against the complainant, on grounds of gender, in terms of Section 6 and contrary to Section 8 of the Employment Equality Acts, 1998 to 2008, in relation to her dismissal during her pregnancy. In reaching my Decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence at the Hearing.
5.2 Discriminatory Dismissal
5.2.1 The entire period of pregnancy and maternity leave constitutes a special, protected period as outlined in the Court of Justice of the European Union Decisions in Webb v EMO Air Cargo (UK) Ltd Brown v Rentokil Ltd and Dekker v Stichting Vormingscentrum . In Brown v Rentokill Ltd, the Court of Justice explains why pregnancy is a special protected period:
Article 2(3) of Directive 76/207 recognises the legitimacy, in terms of the principle of equal treatment, first, of protecting a woman's biological condition during and after pregnancy and, second, of protecting the special relationship between a woman and her child over the period which follows pregnancy and childbirth.
It was 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, women who have recently given birth or women who are breastfeeding, including the particularly serious risk that pregnant women may be prompted voluntarily to terminate their pregnancy, that the Community legislature, pursuant to Article 10 of Council Directive 92/85/EEC of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding (tenth individual Directive adopted within the meaning of Article 16(1) of Directive 89/391/EEC) (OJ 1992 L 348, p. 1), which was to be transposed into the laws of the Member States no later than two years after its adoption, provided for special protection to be given to women, by prohibiting dismissal during the period from the beginning of their pregnancy to the end of their maternity leave.
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. It is equally well settled law that the dismissal of a pregnant woman (which can obviously only apply to a woman) raises a prima facie case of discrimination on the gender ground. Once such a case has been raised the burden of proof shifts and it is for the respondent employer to prove that that the discriminatory dismissal did not take place.'
5.2.2 I am satisfied that a dismissal occurred on 11th June, 2009, and that the dismissal occurred during the complainant's pregnancy. I am also satisfied that the respondent was aware of the complainant's pregnancy when she was dismissed. The matters in dispute are, whether or not appraisals were carried out, whether there were issues regarding the complainant's performance and whether the complainant was aware of these performance issues, the length of the probation period is also in dispute.
5.2.3 The complainant, at the hearing, outlined the circumstances surrounding her dismissal. The complainant, Ms. Behan, told the hearing that she was dismissed a week after she advised the respondent of her pregnancy. The complainant upon questioning stated that she was 3 months pregnant at the time she advised the respondent i.e. on 4th of June 2009.
5.2.4 The respondent, at the hearing denied that the decision to dismiss the complainant was in any way influenced by the complainant's pregnancy. Witness for the respondent, Ms. A advised the hearing that she herself is a working mother and one of 4 sisters all of whom are working mothers, Ms. A went on to state that she was upset and shocked that she was being accused of dismissing another woman due to her being pregnant. She acknowledged that the complainant had advised her of her pregnancy on 4th June, 2009 and stated that she had congratulated the complainant upon hearing that she was pregnant, as she had done with other pregnant employees in the past, as she felt it was something to be celebrated. It is the respondent's evidence that 2 other employees were pregnant in or around the same time as the complainant and that both returned to work following their maternity leave. The complainant upon questioning acknowledged that 2 other members of staff, on a different team, were also pregnant during the time in question.
5.3 Performance
5.3.1 The complainant advised the hearing that she was not aware of any issues with her performance and that appraisals and meetings referred to in the respondent's submission had not taken place. The complainant advised the hearing that her dismissal on 11th June, 2009 was without warning. The complainant also stated that she had never received any warnings verbal or written during her employment with the respondent. The complainant upon questioning did however acknowledge that a comment made by her manager Ms. A about her sales target could be presumed to be a warning. The complainant went on to state that her manager had on one occasion told her that the General Manager was "keeping an eye on her" in relation to her sales and that she should try to make more sales. When questioned as to whether this comment was a warning the complainant responded that she presumed it was or could have been. The complainant then went on to state that it was not possible for her to influence sales targets during the periods when she was working on the till as opposed to when she was working on the shop floor.
5.3.2 The respondent advised the hearing that the complainant was dismissed due to underperformance. Witness for the respondent, Ms. A, who was the complainant's manager during her employment, advised the hearing that she had two appraisal meetings with the complainant during the period in question. Ms. A advised the hearing that the first appraisal meeting took place on 17th March 2009, when she and the complainant sat down and discussed her performance with the aid of an appraisal form (submitted to the Tribunal). Ms. A advised the hearing that this first appraisal meeting was very positive as was reflected in the high scorings in many of the 21 categories on the appraisal form. Ms. A also advised the hearing that the scorings were very high on this first form and that this may in part, be due to the fact that she likes to praise and encourage new recruits and to focus on the positive efforts being made. Ms. A advised the hearing that a second appraisal meeting took place on 29th April, 2009 (3 months after the complainant commenced employment). Ms. A stated that this meeting was not as positive and the appraisal form (submitted to the Tribunal) reflected this, with low scorings in many of the 21 categories. Ms. A stated that the complainant was not happy with this appraisal and that she had argued that she was unable to make as many sales due to the amount of time she was assigned to cashier duties. Upon cross-examination Ms. A elaborated on some of the other areas where the complainant's performance had been deemed to have decreased noticeably. Ms. A indicated that the complainant in the period in question had made less of an effort overall and that in addition to her sales decreasing she also paid less attention to customers whom she had previously approached in a helpful manner and that her customer service and phone manner had also disimproved. Ms. A stated that her relationship with her peers has deteriorated as they felt she was not pulling her weight. Ms. A advised the hearing that the complainant's performance and attitude had deteriorated during the period in question. Ms. A also stated that the complainant was no longer as participative when it came to training and feedback during training. Ms. A went on to state that following this appraisal she advised the complainant that improvements would have to be made, but stated that she did not threaten the complainant with dismissal as that is not how she operates, she added that following such a performance appraisal, the complainant could not have thought things were going well.
5.3.3 Witness for the respondent, Ms. A advised the hearing that the complainant had seen both appraisal forms and that the scorings on the forms were discussed with the complainant. Ms. A went on to state that she had not given the complainant copies of the completed appraisal forms to keep and acknowledged that this was a mistake on her part, and that maybe she should have given her copies of the completed forms. Ms. A at the hearing, stated that she had advised the complainant following the appraisal of 29th April that they would meet again in about a month to see if there was any improvement in her performance. It is the respondents evidence that there was no improvement in the complainant's performance during this period and that based on this, the complainant was dismissed at the next meeting which took place on 11th June, 2009.
5.3.4 In general, I found the respondent to be a more compelling witness. On the matter of the appraisal meetings I prefer the evidence adduced by the respondent regarding this issue. I find the testimony of Ms. A to be credible and honest and I am satisfied that the appraisal meetings did take place and that the complainant was in attendance at these meetings and a party to the discussions. I am thus satisfied that there were issues with the complainant's performance and that she was aware of these performance issues.
5.4 Probation Period
5.4.1 The complainant advised the hearing that she had been told at interview by Ms. A that she was to be subject to a probation period of 3 months. She went on to state that she was advised by her manager after the three month period that there were no issues with her work and that she had successfully completed her probation period. The respondent advised the hearing that the complainant was subject to a 6 month probation period and that this is common to all new employees. The respondent went on to state that this is outlined in the Employee Handbook a copy of which was presented to the hearing. Witness for the respondent Ms. A advised the hearing that she herself did not give the complainant a copy of the handbook but that she understood the complainant had seen it. The complainant's evidence was that she had seen the handbook on a training day but had been advised not to sign it due to irregularities in it. A copy of the Employee Handbook was presented to the hearing. On closer examination the copy of the handbook presented at the hearing contained no reference to any probation period. The respondent advised the hearing that this handbook had recently been revised by ESA consultants and that different versions existed during the changeover period.
5.4.2 The respondent at the hearing stated that the complainant had been dismissed for underperformance during the probationary period. As outlined above at para 5.4.1 there is a conflict in evidence regarding the length of the probationary period. It should be noted that the special, protected period of pregnancy and maternity leave is applicable irrespective of whether a pregnant woman is on probation or not and a pregnant employee cannot be dismissed during this specially protected period only in exceptional circumstances not connected with the condition of pregnancy. I will however examine the issue of the length of the probationary period for the sake of completeness and credibility as it is a matter of dispute between the parties. If I am to accept the complainants evidence that she was subject to a 3 month probation period and as she commenced employment on 24th January, 2009 this 3 months probation would have ended on 24th April, 2009. As I am satisfied that appraisal meetings took place and that the complainant was a participant in these meetings, I refer to the appraisal form of 29th April, 2009 which indicates that the complainant's performance had deteriorated significantly since the previous appraisal. If this was the final appraisal on which the complainant's probation was based I find it hard to believe that complainant could see this as a successful probationary report and consider that she had passed her probation. Indeed, if it were the case that the complainant was subject to a 3 months probationary period culminating in the 29th of April report I find it hard to believe that she would be retained by the employer beyond that 3 month period, based on that report. Therefore as the complainant was not dismissed on 29th April, 2009 it makes more sense that the complainant, whether she was aware of it or not, was in fact subject to a longer probation period and I must prefer the evidence of the respondent on this point.
5.5 Letter of recommendation for Mortgage
5.5.1 The complainant, at the hearing produced a letter, from the respondent to a lending institution, detailing the amount of the complainant's salary and indicating that she was employed by the respondent, in a full time position. This letter was dated 11th May 2009. I should point out that this letter states that the complainant is full-time but does not state that she is in a permanent position. It is the complainant's evidence that the respondent issued this letter in response to a request from her as she needed it to secure funding for a mortgage. The complainant seeks to rely on this letter as proof that she had passed her probation and that there were no issues regarding her performance. The respondent's evidence on this matter is that the letter was issued in response to a request from the complainant and that it was issued for the sole purpose of helping her out. Witness for the respondent, Ms. A advised the hearing that she was aware that the complainant was planning to build a house, and had been told by the complainant, that such a letter was required in order to secure funding from a financial institution.
5.5.2 Both parties agree on the purpose of the letter and the fact that it was issued on foot of a request from the complainant. Witness for the respondent, Ms. A stated that the letter was never held out to be anything other than something issued at the request of the complainant in order to help the complainant secure funding from a financial institution. I accept the respondent's evidence that the intention of issuing this letter was to help the complainant secure funding, it is also the complainant's evidence that this letter was requested in order to secure funding from a financial institution. Based on the totality of the evidence adduced regarding the purpose of said letter and bearing in mind that both parties are in agreement as to the reason for its issue I do not accept the complainants contention that this letter is evidence that there were no issues with her performance.
5.6 Disciplinary Procedures
5.6.1 The respondent at the hearing acknowledged that the company does have a disciplinary procedure but that this procedure is only applied in cases where the employee is established and does not apply to those on probation. Witness for the respondent, Ms. A, advised that the respondent does not apply the disciplinary procedure in cases where the employee in question is on probation and that other employees have been dismissed during their probation period in a similar manner to the complainant. Ms. A went on to state that it was her understanding that the disciplinary procedure was only for permanent employees. Ms. A's testimony on this issue is credible and her reasoning for not following the company's disciplinary procedure, is applied consistently to all employees on probation. If it was the case that the disciplinary procedure was applied in all other cases save in the present case I would be questioning whether this was influenced by matters relating to the complainant's pregnancy. However, as I accept the evidence of the respondent that the disciplinary procedure is not applied to any employee on probation, and as I have made a finding at pgh 5.4.2 in relation to the probationary period, I find that the failure to apply the disciplinary procedure was not due to the complainant's pregnancy.
5.7 I must now decide whether, the complainant was dismissed due to her pregnancy or whether there were exceptional circumstances justifying her dismissal. The evidence does not support the complainant's contention that there were no issues with her performance and that she was dismissed solely for reasons relating to her pregnancy. The respondent readily admits that it was aware the complainant was pregnant when they terminated her employment. However, they maintain that the reasons for her dismissal were not linked to her pregnancy. It is important to remember that this is a complaint of discriminatory dismissal rather than unfair dismissal.
5.8 In considering this case, I am guided by McGuirk and Irish Garden Publishers Ltd . In this case the complainant's dismissal took place during the protected period but it was found that the dismissal was unconnected to the complainant's pregnancy. The facts of the case are similar to this instant case. In that case, it was found that the complainant's work was not satisfactory and she had received two warnings. Irish Garden Publishers Ltd was aware she was pregnant when her employment was terminated. The Equality Officer found that her dismissal was based on underperformance and was not connected to her pregnancy.
5.9 Bearing in mind the fact that I have accepted that the appraisal meetings took place and, following the 29th of April appraisal I am satisfied that complainant was aware that there were issues with her performance, and that she had seen documentary evidence of these performance issues. In addition, it has also been established that the complainant had been verbally warned regarding her performance in relation to her sales targets. As it is the complainants evidence that she advised the respondent of her pregnancy on 4th June, 2009 at which point she was 3 months into her pregnancy she would have been less than 2 months into her pregnancy at the 24th April meeting and at such an early stage the respondent could not have been aware of her pregnancy as she had not advised them of it at this stage. I cannot therefore accept that the performance appraisal of 24th April, 2009 was influenced by anything other than the complainant's performance. I am satisfied therefore, that this appraisal was carried out prior to any knowledge, on the respondent's part, that the complainant was pregnant. It is the respondent's evidence that a further meeting was to take place a month after the April meeting, again this was decided based on the April 24th appraisal, at a time when the respondent was unaware of the complainant's pregnancy. The fact that this meeting took place a week after the respondent became aware of the complainants pregnancy is not sufficient evidence that the dismissal was influenced by the complainant's pregnancy.
5.10 I am therefore satisfied, that the respondent's decision to dismiss the complainant was unrelated to her pregnancy, as this decision was based on performance issues discussed with the complainant, during a performance appraisal which took place on 29th April 2009, before the complainant had disclosed her pregnancy to the respondent. I am also satisfied, that the respondent has furnished credible evidence, that the termination of the complainant's employment was based on factors connected with her poor performance, during a period, which pre dated her pregnancy, and that these matters had been discussed with her. I find that the termination of the complainant's employment was not connected in any way whatsoever with her pregnancy.
6. DECISION OF THE EQUALITY OFFICER
6.1 I have completed my investigation of this complaint and in accordance with section 79(6) of the Employment Equality Acts, 1998-2008 I issue the following decision. I find -
(i) that the respondent did not discriminate against the complainant on grounds of gender in terms of section 6(2) of the Employment Equality Acts, 1998 -2008 and contrary to section 8 of those Acts in respect of her dismissal.
____________________
Orla Jones
Equality Officer
24 May 2012