ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00001004
Complaint for Resolution:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 77 of the Employment Equality Act 1998 | CA-00001438-001 | 13/12/2015 |
Date of Adjudication Hearing: 18/05/2016 & 15/07/2016
Venue: Davitt House, 65a Adelaide Road, Dublin 2
Workplace Relations Commission Adjudication Officer: Aideen Collard
Procedure:
The aforesaid complaint under Section 77 of the Employment Equality Act 1998 (hereinafter also referred to as ‘the Act/s’) was received by the Workplace Relations Commission (hereinafter ‘WRC’) on 13th December 2015 and was referred to me by the Director General for adjudication. This is a complaint by the Complainant that she was subjected to discrimination in relation to training during her employment with the Respondent and was subsequently dismissed owing to her pregnancy on the ground of gender pursuant to Sections 6(2)(a), 6(2A), 8(1)(c), 8(6)(c) and 8(7) of the Acts. It was also noted that two identical complaints were brought, one against the Respondent herein and one against another company named in the Complainant’s P45. As the Respondent’s Representative confirmed that the Respondent named herein was the Complainant’s employer and the other company was inadvertently named in her P45, the other complaint, Reference No. ADJ-00001064 – CA-00001442 was withdrawn. I heard this complaint over two days on 18th May 2016 and 15th July 2016 and gave the Parties an opportunity to be heard and to present any relevant evidence. Both Parties were represented, the Complainant by Hoban Boino Solicitors and the Respondent by Management Support Services. All oral and documentary evidence presented before and during the hearing have been taken into consideration along with relevant legal provisions and case law.
Complainant’s Submission and Presentation:
The Complainant gave evidence confirming that she has extensive experience working as a Restaurant Manager and had received an excellent reference from her previous employer as furnished at the hearing, describing her as “reliable and hardworking”. However, she said she had been overworked in her previous position and had found it too stressful. In order to progress her career in a new work environment she took up employment with the Respondent’s Seafood Restaurant (hereinafter ‘the Restaurant’) on 25th March 2015. The Complainant received an email on 13th March 2015 from the Respondent’s Director of Operations, Mr A, expressing his delight that she had accepted the Respondent’s offer of employment. He attached the written terms and conditions of her employment for signing. They confirmed her position as a Restaurant Manager and her salary of €30,000 gross per annum based on a 45-hour working week. They also provided for a 6 month probation period, extendable to a maximum of 11 months and expressly stated that she reported to Mr A. She was also verbally advised that she would be sharing the managing of the Restaurant jointly with another Manager, Ms B and understood that she would be working alongside Ms B.
Shortly after the commencement of the Complainant’s employment, the other Manager, Ms B reduced her own working hours to approximately 35 hours per week with 8 of these hours allocated to office work. This resulted in Ms B leaving the Restaurant when the Complainant was starting her shifts so there was no overlap in shifts. The Complainant received little or no training and after two days in the position, she was handed the keys to the Restaurant and expected to simply perform her duties and effectively run the Restaurant. She realised that her introduction to the new workplace was less than ideal, and from the start she was constantly facing minor issues, e.g. on 22nd April 2015, Ms B did not leave out a safe key for her. This situation was not helped by another key member of staff leaving shortly after her commencement.
The Complainant was in fact pregnant at the time of commencement of her employment with the Respondent. On 7th May 2015 on her day off, she had a pregnancy ultrasound examination at her Maternity Hospital, confirming that her pregnancy was in order with a due date of 16th September 2015. She decided to notify the Respondent and the following day, she informed Ms B of her pregnancy. Although acknowledging the good news, Ms B informed her that her due date collided with a planned holiday to the US and advised her that they must work out the roster. The Complainant furnished Ms B with a certificate confirming her pregnancy and Ms B passed it on to one of the office staff as Mr A was unavailable at that time. Within two days, the Complainant’s pregnancy became known to the other staff and also to Mr A. The Complainant then spoke to Mr A advising him that she was aware that she was only new in the job and hoped she would be allowed to return next season after her maternity leave. Mr A congratulated her and commented that the Restaurant was quiet from September onwards in any event.
Within the next few weeks, the Complainant experienced some disturbing changes in the workplace that initially she did not link to her pregnancy. She noted that from the date of notification she was no longer invited to the weekly managerial/board meetings. Nonetheless, a few days later, Mr A enquired about her health and joked about the name of her expected baby. On 1st June 2015, the Complainant was taken aback by a lengthy email from Ms B, referring to issues around recording covers, completion of closing sheets, use of cash bags, vouchers, charging staff for drinks and on a more serious note, management of rosters and running service. The email adopted a critical tone concluding: “To be perfectly honest, I get the impression off you that you want to run the restaurant on your own and you completely disregard my authority, but please remember that I have several years management experience without a single complaint from staff member and very few about my service. I know what I am doing. I have taken a step back from the service side of things, under the impression that you would be an extension of my own leadership, but since then you have taken it upon yourself to change things without consulting me, not informing me of incidents and disregarding my place as the senior restaurant manager. There is no way that we can work together in this type of atmosphere and we have to sort out our issues now. I look forward to hearing your opinion on these matters.” The Complainant believed that these issues were largely Restaurant specific, and related to cooperation between Managers, matters she felt were not clarified at the start. She was surprised that such issues had been raised in an email and not addressed in a normal exchange of information between Managers. She was also surprised to learn that Ms B viewed herself as a “senior restaurant manager” and the Complainant as “an extension of my own leadership”. However, she resisted commenting on this in her replying email addressing the particular issues raised. Whilst she accepted that some of the issues raised were her fault and/or were once-off incidents, she attributed most of the issues raised to lack of training, facilities, staff support, clear instructions and communication with Ms B and was doing her best in difficult circumstances. She referred to the fact that she had been handed the keys to the Restaurant two days after she started and had been learning every day, sometimes from her mistakes, that she was still on probation and if M B felt that she was not the right person for the job, they should discuss it with Mr A and solve the problem. She also expressed her upset that Ms B would get the impression that she was not respecting her as a Manager, offering an immediate meeting to discuss the matters with her and also suggesting a meeting with Mr A upon his return from holidays. She had an informal meeting with Ms B the following morning. Ms B thanked her for her prompt reply to her concerns and agreed that they must talk more often and exchange information. It was also agreed that they would meet Mr A at a later stage as according to Ms B he was very busy at the time.
Arising from the clear change of atmosphere in the workplace after notification of her pregnancy and email received from Ms B, the Complainant emailed Mr A on 12th June 2015 and asked for a meeting with him, Ms B and another member of staff indicating that she knows how busy he is but they need to discuss a few “really urgent” matters. The Complainant further indicated that as they never had a chance to sit down and talk, the situation had become “too serious” and Mr A’s assistance was required. The Complainant sent this email after she had become aware that Mr A had held a meeting in his office with Ms B in respect of which she had not been invited. She was slightly taken aback when she received an immediate response from Mr A advising that he needed “an agenda as I never conduct meetings without prior preparation”. In a response dated 14th June 2015, the Complainant effectively indicated that she would prefer to discuss everything at the meeting as she had not told Ms B about her request for a meeting and did not want her to think she was going behind her back. Mr A responded by email on the same date as follows: “Should you wish to meet with me, it is you who must set the agenda. This is how we do it. I suggest you speak to ‘Ms B’ and explain to her that I never attend meetings without agenda’s.” The Complainant was quite shocked at the nature and tone of this response, demonstrating that Mr A would only meet her if she specified an agenda and clearly showing that he had no reason for desire to meet her at that stage. Despite her requests, no meeting with Mr A and Ms B and the other member of staff ever took place. Instead, the following day of 15th June 2015 at approximately 4-5pm, Mr A came into the Restaurant and smilingly called the Complainant into his office. He advised her that he was letting her go. The Complainant became breathless and could only ask if that was a final decision. She was in complete shock but remembers some of the comments made by Mr A. One of them was “business is business, enjoy your maternity”. References were also mentioned and that if the Complainant required them, there would be no problem issuing them. She recalls the conversation lasting approximately two minutes before she left and went down to the bar area and broke into tears. She said that she was shocked and shaking and unable to drive home.
The Complainant subsequently received a P45 with a date of cessation of 16th June 2015. She confirmed that prior to 15th June 2015, she had no notice of her dismissal, she had not been subject to any disciplinary procedures and there had been no previous meetings or conversations suggesting a decision to dismiss her. Nor had she been subject to any performance reviews or received any additional support and training in relation to any perceived shortcomings. She confirmed that she was unaware of emails dated 6th, 27th & 28th April 2015 between Ms B and Mr A and an email dated 13th May 2015 from the owner’s wife to Mr A, raising issues with her performance and produced for the first time at the hearing. She was not furnished with the reasons for her dismissal in writing. She believes that if she had not been pregnant, she would still have a job. She also confirmed that after a period off work on maternity leave, she had subsequently secured employment as a Restaurant Manager and has not experienced any similar difficulties.
When questioned by the Respondent’s Representative, the Complainant denied being informed at her interview that Ms B was a Senior Manager. She accepted that she had been furnished with some manuals for various work related systems including cashing-up but this had been a few weeks into her employment and the training provided was inadequate. The issues raised in the email dated 6th April 2015 from Ms B to Mr A were put to her and she contended that these were primarily owing to lack of training, direction and support and poor communication within management. She said she had left a note of apology after leaving the premises uncleaned one night as a once-off when they had finished up at 3am. She also admitted to sending some staff home early when it was not busy to save on costs as she had been told that her job was to bring in more money and this had been the practice in her previous employment. She said that she was firefighting for much of the time as many of the floor staff were very young, not properly trained and/or were unmotivated. She denied acting unprofessionally in relation to a member of staff who was off sick as raised in the email of 28th April 2015, and said that she had been afforded special treatment as a daughter of one of the owner’s colleagues. In relation to a customer complaint about her service raised in the email exchange between the owner’s wife and Mr A on 13th May 2015 and forwarded to Ms B, the Complainant denied that she had served the customer in question. She accepted that Ms B had discussed some of the issues raised with her previously but not the staffing issues and contented that her direct Manager, Mr A would not make himself available for meetings with her. It was put to her that when she revealed her pregnancy, Mr A and Ms B had been understanding towards her needs. She was also questioned as to the circumstances surrounding her request for a meeting with Mr A in the days prior to her dismissal, and it was suggested that his conduct was reasonable. She said she had been hoping that Mr A would understand that she needed a private meeting. Although no dates were specified or minutes available, it was put to her that her performance had been discussed at a number of meetings and on one occasion, she had offered to resign. She recalled saying that she would hand in her notice instead of being treated poorly.
It was submitted that although the Respondent’s Employee Handbook contained a detailed equality statement, this had clearly not been adhered to in the instant case. The Respondent had discriminated against the Complainant on the ground of gender by treating her less favourably by reason of pregnancy and dismissing her without any reason, explanation or notice during her pregnancy, contrary to Sections 6(2)(a), 6(2A) and 8(6)(c) of the Employment Equality Acts. Although she had been treated less favourably than a comparable male worker amounting to direct discrimination on the ground of gender, as a uniquely female condition, it was not necessary to show a male comparator in relation to discriminatory acts related to pregnancy. [Dekker -v- Stichting Vormingscentrum voor Jong Volwassenen (ECJ 177/88)] It was further submitted that the Respondent breached Article 10 of the Pregnancy Directive which prohibits the dismissal of pregnant workers from the beginning of the pregnancy until the end of maternity leave, save in exceptional circumstances unconnected with their condition. Article 10(2) also requires employers to cite duly substantiated grounds for dismissal in writing and same were never provided in the instant case.
It was further submitted that the Respondent had discriminated against the Complainant on the same basis by not providing her with appropriate induction training and/or workplace experience contrary to Sections 6(2)(a), 6(2A), 8(1)(c) and 8(7) of the Employment Equality Acts. Whilst the Complainant was an experienced Restaurant Manager, each restaurant has its own unique and specific set of rules regarding interaction with other members of management and allocation of tasks but she was never made aware of these. She should have been informed about the specific expectations of her role and made aware if the Respondent was unhappy with her performance. The Head of Operations, Mr A, to whom she reported, never sought to meet with her about any of the issues raised and never afforded her a meeting to address same. In circumstances where a worker has suffered a breach of rights conferred by European law she must be afforded a right to an effective remedy pursuant to Article 47 of the Charter of Fundamental Rights of the European Union. Overall, and based upon the facts outlined, the Complainant has made out a prima facie case of discrimination and discriminatory dismissal on the ground of gender owing to her pregnancy.
Respondent’s Submission and Presentation:
The Respondent wholly refutes this complaint, contending that the Complainant was afforded adequate training and that her dismissal arose from her performance during her probation period and was unrelated to pregnancy. Many of the background facts to this complaint are not in dispute. It is accepted that the Complainant was employed on 25th March 2015 as a Restaurant Manager and dismissed on 15th June 2015, that her contract of employment was subject to completion of a satisfactory 6 month probationary period, that she was employed to work opposite Ms B, and that Ms B’s hours were reduced accordingly after her appointment. Whilst it was accepted that that both Ms B and the Complainant reported to the Director of Operations, Mr A, it was contended that she was made aware that Ms B was the ‘Senior Manager’ on site.
Ms B gave evidence confirming her extensive experience as a Manager in the restaurant trade. She also fairly confirmed that at the time of the Complainant’s appointment, the Restaurant had not been performing well against stiff competition in the area, that there had been service issues and it had not been professionally run by previous management. She referred to the Complainant’s appointment as being one of ‘Assistant Manager’ with the onus being on her as the existing Manager to show her the ropes although ultimately her suitability for the position was Mr A’s decision. They were to work opposite each other as counterparts and although the Complainant was also answerable to Ms B, they were both answerable to Mr A. The Complainant had been an occasional attendee at Ms B’s weekly meetings with Mr A.
Ms B further confirmed that the Complainant had come from within the catering industry with a reference from her last employer, indicating that she was a reliable, hard-working and valued member of their management team. Ms B had provided her with the necessary induction training and given her the relevant procedures for running the Restaurant systems. However, after a relatively short period of time, Ms B had concerns regarding her abilities. Despite receiving training from Ms B, on 6th April 2015, a matter of weeks after the commencement of employment, Ms B emailed Mr A and copied in one of the owners, highlighting her concerns. In particular, she expressed a view that she did not believe the Complainant was going to be suitable for the Restaurant, stating: “I feel that there is an unwillingness or an inability to follow my instructions.” The email described various shortcomings with the Complainant’s work including cutting the staff’s hours despite being instructed not to do so and leaving the Restaurant in an untidy condition when she was closing down on a number of occasions. When challenged about these matters, the Complainant had given various weak excuses including the fact that she was very busy and thus did not have the chance to get the work done. Ms B felt that this situation had arisen as she had drastically cut the staff roster. Ms B went on to state: “She (the Complainant) seems to want to be in the position of manager so badly that she has forgotten to take the time to learn how to work in our particular restaurant. She cuts staff or sends them on breaks without foreseeing the future needs of the business. During service on Sunday the seating plan was so disorganised that there was a queue to get a table out the door and there were customers fighting with her about their booking at reception. I had already done a seating chart for her which she disregarded (which of course was her right, so long she can do it just as well or better) and over booked tables, promised tables to walk ins when they were reserved, moved tables that had already been seated (more than once) to make up for mistakes, and promised tables in a completely unrealistic time frame. Running service this way may get more people in the door but they will not be happy and it is NOT the way I run a restaurant. She has not taken the time to learn is how we seat tables, what our turnover time is, what our grace period is for late bookings, etc. We are a restaurant not a cafe and the customers deserve to be treated accordingly.” Ms B went on to raise issues about her ability to prioritise, her abrasive manner with staff, her lack of accountability and her attitude towards her hours and responsibility for closings. She ended her email with: “I am disappointed because I had really high hopes when I was first introduced to her, but her initial impression belied her actual work ethos. I think it is already very clear that she is not the right person to be in a management role in (the Restaurant) and I would be remiss if I did not speak up now.” Whilst Mr A does not appear to have responded to this email in writing, the owner replied to Ms B, stating that it was her call and if the Complainant is not suited to the deli, to let her go and find an alternative person. Ms B sat down with the Complainant the following day and talked through the issues.
Ms B and Mr A also had cause to talk to the Complainant on a number of occasions regarding these matters and on at least two occasions, she indicated that if the Respondent was not happy with her that she would resign. On both occasions the Complainant was advised that they did not want this and instead wanted to train her to do the job properly and give her every opportunity to improve. She did not recall the specific dates but recalled that the Complainant had offered to resign before giving notification of her pregnancy. Ms B had also had several meetings with Mr A and the owner about these issues with the Complainant.
Subsequent to this and in an email dated 27th April 2015, Ms B raised concerns with Mr A about the completion of cash sheets, a matter which repeatedly came up throughout the Complainant’s employment, and the need to talk about reorganisation of the management team if this issue continued. She said that her concerns had been communicated verbally and via text messages to the Complainant. Ms B was also concerned about staff morale, which she felt was being increasingly damaged by the way the Complainant approached staff. One example of the unprofessional manner in which she treated staff and related matters was also reflected in a further email of 28th April 2015 from Ms B to Mr A. It concerned a member of staff who called in as being very sick over the weekend. When the girl’s father contacted the Restaurant and spoke to the Complainant, she accused the girl of being hungover after a night out and therefore not genuinely sick, and that this was the second time in as many weeks she had done this. Although telling her father she was a good worker, she said she was unreliable. It was contended that it was inappropriate for the Complainant to speak to an employee’s father on the matter, and she should have challenged her directly when she returned to work if she had evidence to back up the allegation, of which there was none.
Ms B confirmed that the Complainant had notified her in early May that she was pregnant. As an employer and mother, she respected pregnancy and was happy for her. She confirmed that her reference to her holidays falling on the Complainant’s due date was a joke and that seemed to be the accepted position by the Complainant. In this regard, Ms B maintains that when she was made aware of her pregnancy, she advised the Complainant that the Restaurant would be flexible with her regarding working hours and that she was not to be lifting heavy boxes. She maintains that she was supportive to the Complainant regarding her condition and the Restaurant would provide whatever support was necessary during her pregnancy. After that time, Ms B would regularly sit down with her to ensure she was okay, that she did not need to adjust hours and such like. During these conversations, the Complainant was adamant that she was fine and would say she was well and did not need any additional support. Unfortunately, the atmosphere in the workplace continued to deteriorate. Again when spoken to about this, her response would generally be that it was not her fault and she would then state that she was new and did not see this happening. A further example of her performance was evidenced by the email dated 13th May 2015 to Mr A from the owner’s wife which referred to a negative customer comment on Facebook about the fabulous food but rude service received that night, stating that the bill was almost thrown at him and that it was the Complainant who had served him. Mr A had forwarded this email to Ms B stating: “Please see below, its now starting to get to the point where it seems no one is listening or acting upon your instructions, etc.. I’ll deal with (the Complainant) so don’t do anything more on that, but you need to get this sorted with all the other issues that are coming back at me.” Ms B also maintained that the Restaurant’s TripAdvisor rating had also decreased under the Complainant’s management but had increased again after her departure.
At this stage there was a serious concern about the Complainant’s performance and both Ms B and Mr A met with her to discuss how she could improve. Unfortunately, things did not improve and this resulted in the email from Ms B to the Complainant dated 1st June 2015 as set out above, raising a number of ongoing performance related issues including issues previously raised. In response to these criticisms, the Complainant replied on the same date with various excuses for the shortcomings including that she forgot to complete a sheet at the end of the day as she was on the floor in order to keep the budget low. She had not rostered enough staff despite previously being instructed not to cut staff and to ensure that service was satisfactory. Regarding an issue raised around the Complainant not using proper bags for lodgements, she maintained that there were no bags there for her to put lodgements in, yet as a Manager she would have been responsible for ensuring that she had the correct bags. Her general response to the issues raised was that she could not deal with everything because of the pressure of work. However these were matters that were adequately dealt with by other managers when on duty. She went on to state in her response: “…but it is probation time so if you feel that I am not the person (the Respondent is) looking for let’s just discuss with (Mr A) and solve problem.” At this stage it became quite clear to Ms B that the Complainant was not suitable for the position and all training had been exhausted. They were at risk of losing staff going into the busy season under the Complainant’s management. As a consequence, Ms B had met with Mr A to discuss the matter and it was decided that they could not continue to employ her as it was not working out.
Having made the decision that the Complainant’s employment with the Respondent was not working out, Mr A met with her and advised her accordingly and that a decision had been made not to keep her on. Mr A had since moved on to new employment and was unavailable to give evidence on behalf of the Respondent at the second day of hearing, having attended the first hearing. However, it was contended on behalf of the Respondent that he had outlined the ongoing performance issues to the Complainant before terminating her employment. It was also contended that when she had been informed of these matters, she did not seem to be surprised and at no time made any suggestion that she was experiencing difficulties because of her pregnancy or that she felt she had been treated unfairly because of her pregnancy.
When questioned about her working relationship with the Complainant, Ms B said there was no real explanation for the issues that had arisen between them and perhaps their backgrounds and management styles had been different. The Complainant’s Solicitor put it to Ms B that it was only in the email of 1st June 2015 (after notifying the Respondent of her pregnancy) that she had first been informed of any issues with her performance in writing. Ms B did not have copies of any text messages between the Parties, nor could she confirm the dates of any meetings where the Complainant’s performance was discussed or provide minutes of same. She accepted that there were no records in relation to opportunities afforded to the Complainant to improve and said that everything was verbally communicated within the Restaurant. She reiterated her respect for pregnancy and contention that the Complainant had been treated properly. She said that it was well within the Complainant’s remit to seek a meeting with Mr A, implying that she had not stood in the way of any such meeting/s. When asked as to why the Complainant’s requested meeting with her, Mr A and the other member of staff had not gone ahead, she referred to the situation being difficult with the other member of staff being on reduced hours and there being no assistant manager. When asked why the Complainant had not been furnished with reasons for her dismissal, she said that it was not within her remit to provide same. Whilst she said she had some HR experience, she had no specific training on employment equality and related legislation and Mr A had primarily been responsible for the hiring of staff.
In summary, it was submitted on behalf of the Respondent that the Complainant’s employment had been terminated for performance related reasons unrelated to her pregnancy during her probation period. The Complainant had contended that she had not been trained properly owing to her pregnancy yet it was clear that these performance related issues had arisen before she had notified the Respondent of her pregnancy as evidenced in the emails of 6th, 27th and 28th April 2015. Despite meetings with her to discuss improving her performance, there had been no improvement in performance. Furthermore, it would not have been in Ms B’s interests not to train the Complainant properly as she would have to deal with the consequences. It was submitted that when informed of the Complainant’s pregnancy, Ms B immediately indicated that they would be flexible regarding her working arrangements and practices. The Respondent has previously had pregnant employees who have returned to continue to work with them after pregnancy. Subsequent to giving notice of her pregnancy, it was apparent that there were still issues and concerns with the Complainant’s performance as highlighted in the emails of 13th May 2015 and 1st June 2015, with many repeats of previously raised issues. Given her level of experience within the industry, it was contended that she should have been able to step into the role of a Restaurant Manager with relative ease and certainly without the very basic issues raised. The Complainant also clearly recognised the issues with her own performance as evidenced by her comment about the need to meet with Mr A to solve the situation if they were unhappy with her. Although it was accepted that written reasons were not furnished, the Complainant’s contention that she was not provided with reasons for her dismissal was refuted. Although no direct evidence was given owing to Mr A’s unavailability, it was contended that when Mr A met her on 15th June 2015, he advised her as to the reasons for the termination of her employment and her reaction was not one of surprise. The Respondent further contends that regardless of her gender, the same action would have been taken against any other employee experiencing such difficulties. Overall, it was submitted that the specially protected position of pregnancy is not absolute such as in the current exceptional circumstances arising from the very serious concerns with the Complainant’s performance.
Findings and Conclusions:
The issues for my decision are whether or not the Complainant was subjected to discrimination in relation to the training provided during her employment with the Respondent and whether she was dismissed owing to her pregnancy on the ground of gender. Section 85A of the Acts sets out the burden of proof which applies to claims of discrimination and requires the Complainant to establish in the first instance, facts from which discrimination may be inferred. It is only where such a prima facie case has been established that the onus shifts to the Respondent to rebut the inference of discrimination raised.
The factual matrix has to be considered in light of the well-established principles relating to pregnancy-related discrimination in employment. The leading national [e.g. Trailer Care Holdings Limited -v- Deborah Healy (2012) Labour Court EDA 128] and European authorities [e.g. C-177/88 Dekker -v- Stichting Vormingscentrum voor Junge Volwassenen (1990) ECR 1-3841], national (Employment Equality Acts) and EU law (Article 23 of the Charter of Fundamental Rights of the EU & Directive 2006/54/EE - the Recast Directive & 92/85/EEC - the Pregnancy Directive), set out the position of pregnant women in employment. They have made it clear that since pregnancy is a uniquely female condition, any adverse treatment on the ground of pregnancy amounts to direct discrimination on the ground of sex or gender. Women are to be afforded special protection from adverse treatment, and in particular from dismissal on account of their condition, from the commencement of pregnancy until the end of maternity leave. The entitlement to that protection is to be regarded as a fundamental and inviolable right within the legal order of the EU, upon which its Courts and Tribunals must vindicate within the limits of their jurisdiction. Where a pregnant woman is dismissed during a period of special protection the employer bears the burden of proving, on cogent and credible evidence, that the dismissal was in no sense whatsoever related to her pregnancy. The aforesaid decisions along with those of the Labour Court (e.g. Assico Assembly Limited -v- Corcoran EED 033/2003) and the Equality Tribunal (e.g. O’Brien -v- Persian Properties t/a O’Callaghan Hotels DEC-E2012-010) make it clear that women who are pregnant are to be afforded special protection in employment and cannot be dismissed save in exceptional circumstances not associated with pregnancy, and further that such grounds should be set out in writing as a matter of law and good practice. Notwithstanding same, the Equality Tribunal has on occasion, found that exceptional circumstances not associated with pregnancy have justified a dismissal during pregnancy, such as where the employee has had the benefit of a disciplinary process or where an unconnected genuine redundancy situation has arisen. I am also cognisant of the Labour Court’s position in relation to the dismissal of employees during probation when pregnancy is not a factor, and the requirement for employers to adhere to basic fair procedures, going so far as to hold in one particular case that disciplinary procedures should be adopted in relation to a situation of dismissal for underperformance in Irish Postmasters Union -v- A Worker AD 115.
Section 6(1) of the Employment Equality Acts provides: “For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where- (a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the ‘discriminatory grounds’) which- (i) exists, (ii) existed but no longer exists, (iii) may exist in the future, or (iv) is imputed to the person concerned,”. In relation to discrimination on the ground of gender, Section 6(1)(2) provides: “As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are- (a) that one is a woman and the other is a man (in this Act referred to as “the gender ground”),”. Specifically in relation to pregnancy or maternity leave, Section 6(2A) provides: “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 requirement, less favourably than another employee is, has been or would be treated.” Sections 8(1), 8(6) and 8(7) of the Acts further define discrimination in relation to specific working conditions including the provision of and access to training and in relation to dismissal.
Dealing firstly with the Complainant’s claim for pregnancy-related discriminatory dismissal on the gender ground, it is common-case that the Respondent terminated her employment in the knowledge that she was pregnant at the material time. Accordingly, it is for the Respondent to prove, in line with the authorities cited above, that exceptional circumstances unrelated to the Complainant's pregnancy existed that would have warranted her dismissal. Thus, the bar is set at a very high level notwithstanding the fact that she was still within a 6 month probationary period. In this respect, the Respondent relies heavily upon the fact that issues around the Complainant’s performance arose before she notified management of her pregnancy as evidenced in emails of 6th, 27th & 28th April 2015 between Ms B and Mr A regarding same. They further submit that notwithstanding such performance related issues being brought to her attention and the provision of further training, the issues persisted resulting in the decision to terminate her employment some three months after commencement of employment and a month after notification of her pregnancy. It is noted that the probation clause relied upon provided for a 6 month probation period extendable to a maximum of 11 months “…designed to give the employee an opportunity to assess their suitability and interest in the position at hand, while at the same time enabling the company to establish the compatibility of the employee to the work environment.” It also provided that “…the disciplinary procedures will not apply and your employment may be terminated at any time.” It was contended on behalf of the Respondent that it was entitled to terminate the Complainant’s employment in the circumstances outlined above, where there were clearly serious issues with her performance before notification of her pregnancy.
In this respect, I make the following observations. Firstly, and based upon the Respondent’s own evidence as given by Ms B, the Complainant had commenced her employment with the Restaurant at a time when it had been experiencing management difficulties and underperforming against its competition. Therefore from the outset, the Complainant was coming into a challenging workplace situation. Secondly, it is clear from the email exchanges as set out above that her position within the Respondent’s management structure had never been clearly defined. The Complainant saw herself as working as a Manager alongside Ms B and reporting to Mr A as expressly provided for in her contract. However, Ms B clearly regarded herself as “…the senior restaurant manager” with the Complainant also answerable to her. This was clearly a recipe for disaster particularly as the Complainant and Ms B appear to have had very different management styles. There were also communication difficulties arising from the lack of overlap between the Complainant’s and Ms B’s shifts. Thirdly, when the inevitable difficulties arising were brought to Mr A’s attention in Ms B’s email of 6th April 2015 complaining about the Complainant’s performance and suitability and her “…unwillingness or an inability to follow my instructions.”, he did not respond or appear to take any other action to address the situation. The only response came from the Respondent’s owner, stating that it was Ms B’s call and if the Complainant is not suited to the deli, to let her go and find an alternative person. Again there was no evidence of any action being taken on foot of the email of 28th April 2015 from Ms B to Mr A. Nor was the Complainant made aware of the existence of these emails until the hearing of this complaint. Overall, there is no evidence of Mr A taking any proactive action to address the situation which might reasonably have entailed clarifying the Complainant’s relationship with Ms B, improving communication and implementing a performance review plan with provision of any required additional training and supports. Whilst it is contended on behalf of the Respondent that Ms B had provided the Complainant with exhaustive training and further, that issues with her performance were repeatedly raised at meetings, the Respondent was unable to provide any oral or written evidence of any dates or specifics of any such meetings. Given the particularity of Ms B’s emails regarding the Complainant’s performance, Mr A’s insistence on agendas being set for meetings and the absence of any such agendas, records or minutes pertaining to meetings where the Complainant’s performance was discussed with her, I do not find it credible that they took place. Therefore on balance, I prefer the Complainant’s evidence in this respect.
Unsurprisingly the situation continued to fester beyond the Complainant’s announcement of her pregnancy on 7th May 2015 giving rise to the email exchange of 1st June 2015 between Ms B and the Complainant, wherein Ms B raised issues with her performance and attitude towards her. Ms B and the Complainant were left to resolve their differences without any intervention from Mr A despite being copied into Ms B’s email. Likewise and arising from the email dated 13th May 2015 to Mr A from the owner’s wife, Mr A’s only response was to forward the email onto Ms B stating: “I’ll deal with (the Complainant) so don’t do anything more on that, but you need to get this sorted with all the other issues that are coming back at me.” There is no evidence that he took any proactive action to address this matter with the Complainant who was first made aware of this email at the hearing. When matters were coming to a head and the Complainant sought an urgent meeting with Mr A on 12th and 14th June 2015, his only response was to demand “an agenda” and terminate her employment on 15th June 2015 without giving her an opportunity to air the difficulties arising or addressing same. At no stage was the Complainant subject to any formal review process and in relation to the performance issues raised, was she subject to any disciplinary procedures or action. Additionally, the Complainant was not furnished with any written reasons for her dismissal. Whilst there may well have been genuine issues with her performance and suitability for the role in question, I am satisfied that she was never afforded a fair chance to address same. Even if this was not a pregnancy-related situation, I find the Respondent is misconceived in its position that it can simply rely upon the probation clause to dismiss the Complainant for performance related issues during the probation period without recourse to a formal review, disciplinary process or indeed to any fair procedures whatsoever.
The matter does not rest there of course as the Respondent was aware that the Complainant was pregnant at the material time of terminating her employment and this is a complaint taken under the Employment Equality Acts. Whilst I fully accept the Respondent’s position that other pregnant employees have not been dismissed during their pregnancy, I must consider the facts of this particular case and whether on the balance of probabilities, the Respondent has shown that exceptional circumstances unrelated to the Complainant's pregnancy existed that would have warranted her dismissal in line with the case law cited above. In addition to the usual employment protections as outlined above, the Complainant was entitled to an added layer of special protection during the period of her pregnancy and maternity leave. I have no doubt that Mr A and Ms B responded positively to the news of her pregnancy and that Ms B enquired as to her needs. However, upon notification of the Complainant’s pregnancy, there was an added onus upon the Respondent to identify and provide her with any necessary supports during this protected period. For instance, when Ms B raised issues with her performance in the email exchange of 1st June 2015 in the knowledge of her pregnancy, her situation should have been properly appraised and any supports identified as being necessary provided. However, the tone of Ms B’s email is extremely critical towards the Complainant without any offer of support contrary to the supportive attitude alluded to in her evidence. From the Complainant’s response of 1st June 2015 referring to a lack of training, I am further satisfied that at this stage the Respondent was on notice that training was a real concern for her. It is also notable that no pregnancy health and safety risk assessment was conducted which might have identified any needs and supports and which might reasonably have included additional training, more managerial cover, clarification of the Complainant’s relationship with Ms B and modes of better communication.
Instead, all of the evidence points towards the Complainant being left to her own devices, working long and late hours and struggling to fulfil her role in difficult working conditions. Instead of identifying and providing the necessary supports, the Respondent effectively left her to sink. Although there was an onus on the Respondent as an employer to take reasonable steps to address the issues arising before notification of the Complainant’s pregnancy as outlined above, after such notification, there was an added onus to reappraise the situation and take such reasonable steps. It is therefore not open to the Respondent to argue that as performance-related issues were raised before notification of her pregnancy, she could not have been dismissed owing to her pregnancy. Furthermore and based upon the proximity of the notification of the Complainant’s pregnancy with her dismissal and Mr A’s refusal accede to her requests of 12th & 14th June 2015 to meet when matters came to a head, instead terminating her employment on 15th June 2015, I am satisfied that Mr A found it more convenient to ‘let her go’ as opposed to addressing any of the issues outlined above. In other words, whilst a view appears to have been taken that her employment as a Manager with the Respondent was not working out prior to notification of her pregnancy, it became a ‘fait accompli’ after such notification. It therefore follows that the Complainant’s pregnancy was a significant factor contributing to her dismissal and I am satisfied that she has made out a prima facie case of discriminatory dismissal. I am further satisfied that the Respondent has not rebutted same by showing that exceptional circumstances unrelated to the Complainant's pregnancy existed that would have warranted her dismissal. In so finding, I am also taking cognisance of the absence of written reasons for the Complainant’s dismissal which I do not consider as being remedied by any verbal reasons given.
Whilst satisfied that the Complainant’s training needs were not sufficiently identified and addressed, I find that as this arose from the outset, it was unrelated to her pregnancy and thus does not amount to direct pregnancy-related discrimination. However, following notification, I am satisfied that the continuing failure to identify and provide appropriate training contributed to the circumstances giving rise to her dismissal.
Finally and for the record, as I have based my findings in relation to Mr A’s role primarily on the Respondent’s own evidence, I do not consider that any evidence he could have given would have altered the position and therefore, the Respondent has not been prejudiced by his absence in this respect.
Decision:
Section 79(6) of the Employment Equality Act 1998 requires that I make a decision in relation to this complaint in accordance with the relevant redress provisions under Section 82. I have concluded my investigation and based upon the aforesaid, find that whilst the Complainant was not directly discriminated against in relation to training, she has made out a prima facie case of pregnancy-related dismissal on the ground of gender contrary to Sections 6(2)(a), 6(2A) and 8(6)(c) of the Acts and the Respondent has failed to rebut same. Therefore, pursuant to Section 82, I order the Respondent to undertake the following:
(1) Within 42 days of the date herein, pay the Complainant €30,000 compensation in relation to her dismissal. I have arrived at this award having regard to the effects of discrimination on the Complainant who was clearly very upset at her dismissal during her pregnancy and also having regard to the requirement pursuant to Article 17 of the Framework Directive that the sanction be “effective, dissuasive and proportionate”. Whilst such discrimination might well merit a higher award, given the relatively short tenure of the Complainant’s employment, I have limited the award to the equivalent of a year’s salary.
(2) Whilst acknowledging that the Respondent has an Employee Handbook containing an equality policy, given the lack of application and training of staff apparent in the instant case, pursuant to Section 82(1)(e) of the Acts, I deem it necessary to further order that the Respondent conducts a review of its procedures in relation to its employment policies, including a requirement that its staff undertake such training as is necessary to ensure that it is in compliance with the Acts with reference to the gender ground.
Aideen Collard, Adjudication Officer
Dated:22nd February 2017