ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000903

Complaint for Resolution:

At:                         Workplace Relations Commission, Haddington Road, Dublin 4

Date of Adjudication Hearing: 21/03/2016

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Act, 1998, and following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

The Complainant was employed with the Respondent from 11^th November 2014 until the employment was terminated with one week’s notice on 18^th May 2015. The Complainant was paid €452.31per week and she worked 39 hours a week. The Complainant was issued with a written statement of her terms and conditions of employment which included a probationary period of 6 months.

The Complainant referred a complaint to the Workplace Relations Commission on 7^th December 2015 alleging the Respondent had discriminated against her in relation to family status and that she had been dismissed on discriminatory gender grounds.

The complaint of discrimination on the basis of family status was withdrawn at the Hearing.

Preliminary Issue.

Section 77 (5) of the Act provides that a claim for redress must be initiated within the period of 6 months of the most recent occurrence of the alleged act of discrimination. Section 77 (6) does allow for an extension of time by a further 6 months if the Complainant can demonstrate there was “reasonable cause” to justify an extension.

The Complainant sought an extension of time. On or about 19^th March 2015 the Complainant attended her GP and was certified and prescribed a six-month curse of anti-depressents. The medical certificate was submitted to the Respondent. On or about 24^th April 2015 the Complainant was informed that she was pregnant and she was advised to discontinue the medication. She was given a medical certificate by her GP and certified as suffering from pregnancy related complications until 15^th May 2015. The medical certificate was emailed to the Respondent. She returned to work on 18^th May 2015 having been certified fit to resume her employment. She was summarily dismissed on 18^th May 2015 and was paid one week’s notice in lieu. Medical report was provided to the Hearing.

The Complainant’s application for Maternity Benefit was rejected by the Department of Social Protection and she sought advice from the Citizens Advice Centre and was advised that she could have a complaint under the Employment Equality Acts and she sought legal advice. She submitted her complaint but it is 17 days outside the time limit of six months and she requested an extension of time under Section 77 (6) of the Act.

The Respondent objected to an extension of time and argued that the Complainant was dismissed on 18^th May 2015. The Complainant’s complaint form makes reference to believing she needed to be in employment 1 full year to bring an Unfair Dismissal case, but was informed her case fell under “the discrimination act”. This does not show reason/s to both explain the delay and afford a justifiable excuse for the delay. The Respondent referenced a number of cases in support of their argument.

Decision:

It is clear from the evidence, with particular reference to the Medical evidence, that the Complainant was diagnosed as suffering from anxiety in March 2015 and subsequently she was diagnosed as suffering from pregnancy related complications in April 2015. She applied for Maternity Benefit from the Department of Social Protection but this was refused as she was not in insurable employment for 17 weeks before her baby was due to be born.

In considering to give an extension of time I had to consider if this would prejudice the Respondent, I decided that the Respondent was not prejudiced in any way and the Respondent did not argue this at the Hearing. Accordingly I decide to give an extension of time.

Summary of Complainant’s Submission.

The Complainant commenced employment with the Respondent on 11^th November 2014. She was paid a gross annual salary of €23,520.00. The Complainant was provided with a Written Statement of her Terms and Conditions of Employment on 17^th November 2014 – copy provided to the Hearing. This was a Permanent Position as set out in the terms as provided. A 3 month probationary period also applied and was subject to the satisfactory completion of her probationary period.

Some 3 months after the commencement of the employment in March 2015 the Respondent claimed there was a mistake in the original Terms and Conditions of Employment of 17^th November 2014 as it should have provided for a 6 month probationary period rather than 3 months. She was requested to sign the new terms and conditions and duly did.

The Complainant attended her GP around 19^th March 2015 and she was certified unfit for work for a number of weeks and prescribed a 6 month course of anti-depressants. The medical certificate was submitted to the Respondent. When she returned to her GP on 24^th April 2015 it was confirmed she was pregnant and she was certified with pregnancy related complications until 15^th May 2015. She forwarded these Certificates to the Respondent. She was certified fit to return to work on 18^th May 2015.

The Complainant attended at work at 9am on 18^th May 2015 and was summoned to a meeting in the Boardroom at 10am attended by the HR Manager, Quality Manager and Warehouse Manager. She was informed she was being dismissed with immediate effect for unspecified performance related issues. The Complainant stated that at a Performance Review in March 2015, shortly before she was medically certified unfit to work due to anxiety and pregnancy related complications, she had received a very positive review. She requested specific examples in relation to poor performance and was informed that on a particular Friday she should have stayed late to finish processing receipts. The Complainant stated she had remained late with the IT Manager and that all the receipts had been processed.

The Complainant stated that she believed the real reason for her dismissal was the fact she was pregnant and had been absent for a period of 2 months. She was informed that she would be escorted off the Premises.

The Complainant and her Representatives outlined a number of key decisions of the Court of Justice of the European Union, the Equality Tribunal and the Labour Court in support of their arguments.

Summary of Respondent’s Position.

The Complainant commenced employment with the Respondent on 11^th November 2014 on a six month probationary contract. The Complainant received a good Mid-Probation Review on 12^th March 2015

The Complainant asked for a pay increase on 15^th April 2015 stating she felt underpaid. This caused the Strategic Planning and Contract Compliance Manager to seek feedback on the Complainant’s performance. He was alarmed the feedback was so critical and believed her performance had dropped since March 2015. He could not wait until the end of the Probation Review scheduled for 24^th May2015 and sought to address the issue immediately. He called the Complainant to a meeting on 23^rd April 2015 to discuss – her absenteeism – last minute holiday requests – lack of flexibility and non-completion of tasks. The Complainant felt the criticisms were unfair and maintained her probationary period was only 3 months and disclosed she was pregnant. The Complainant was on certified sick leave from 24^th April to 18^th May 2015.

The Manager met with the Complainant when she returned to work on 18^th May 2015. She was informed that she was not being retained. As the Complainant had announced her pregnancy on 23^rd April 2015 the Manager had to look at how he would treat a hypothetical comparator in similar circumstances. The Manager was of the view that if a Male dramatically dropped his performance and attitude then he would not be retained. He would not be given an extension.

Section 85 (a) of the Act provides that in the first instance the burden of proof rests with the Complainant in proving facts from which discrimination may be inferred. If the Complainant satisfies that burden and the Adjudication Officer accepts that they are of sufficient significance to raise an inference of discrimination then the burden of proof passes to the Respondent to show that the issues complained of were in this case related to the Complainant’s pregnancy.

The Complainant had been employed with the Respondent from 24^th November 2014. She was provided with a written statement of her Terms and Conditions of Employment on 17^th November 2014 with a three month probationary period. She was issued with a further Statement of her Terms and Conditions of Employment on 8^th December 2014 which included a six month probationary period. The Respondent stated the original Statement was issued in error.

The Complainant had a Mid Probation Review on 12^th March 2015 and in six of the seven categories she received “Excellent” while in the seventh category she scored “Very Good”. The Respondent argued that following the Complainant’s request for an increase in her wages that the Strategic Planning and Contract Compliance Manager sought a feedback on her performance. The Respondent stated that the feedback was critical of the Complainant’s performance. However unlike the Mid Probation Review of 12^th March 2015 there was no evidence provided to the Hearing in relation to how the Complainant had scored in the seven categories. In fact no evidence was presented to support this contention except by a bold statement. The Respondent did not present any evidence at the Hearing or in their written submission to support their argument that the Complainant was dismissed during her probationary period because of poor performance.

The Complainant was certified unfit for work on 19^th March 2015 for a number of weeks and she was certified with Pregnancy Related complications on 24^th April 2015, having being diagnosed she was pregnant on the same date. The Respondent was informed the Complainant was pregnant. The Complainant was certified fit to resume her employment on 18^th May 2015. However when she attended at the premises of the Respondent on the 18^th May she was summarily dismissed without the application of fair procedures or natural justice.

Section 6 (2) (a) of the Act provides as follows:

Without prejudice to the generality of subsections (1) and (2), discrimination on the gender ground shall be taken to occur where, on a ground related to her pregnancy or maternity leave, a woman employee is treated, contrary to any statutory instrument, less favourably than another employee is, has been or would be treated

This issue has been the subject of a number of key decisions from the Court of Justice of the European Union and also by the Equality Tribunal and the Labour Court. The judgement of the CJEU of 8^th November 1990 in Elisabeth Johanna Dekker v Stichting Vormingscentrum voor Jong Volwassenen was just the first of a long line of judgements from the CJEU which has held that women are to be afforded special protection from adverse treatment and in particular dismissal on grounds of their pregnancy from the commencement of the pregnancy until the end of their Maternity Leave. This approach was adopted by the Labour Court under this Act in a number of key decisions. I refer in particular to the Determination No EDA 128 of the Court in the case of Trailer Care Holdings Ltd and Deborah Healy of 16^th March 2012

All decisions of the CJEU and the Labour Court has made it clear that since pregnancy is a uniquely female condition any adverse treatment, including her dismissal, on grounds of her pregnancy is direct discrimination on grounds of her sex.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 79(6) of the Employment Equality Act, 1998 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

For all the reasons as set out above in my Findings I am satisfied that the Complainant was discriminated against on grounds of her gender and that she was dismissed from her employment because of her pregnancy. In accordance with Section 82 (1) (c) of the Act I order the Respondent to pay the Complainant compensation of €40,000 (forty thousand euro) within 42 days of the date of this Decision.

Date: 2^nd June, 2016