ADJ-00007770

Complainant

Respondent

Parties

A Receptionist

A Clinic

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-00010416-001

24/03/2017

The complainant was employed as a Receptionist in the respondent clinic between September 2016 and February 13^th 2017 when her employment was terminated. Her weekly wage was €499.50.

She attributes the termination to the fact that her employer became aware she was pregnant.

Following her appointment to the position the complainant was told that she would be on a three-month probationary period and that there would be monthly performance reviews. In fact, these did not take place and when she inquired why she was told not to worry and that they would happen soon. She was also given to understand that her performance was satisfactory.

She told a colleague that she was pregnant, probably in early January and when asked agreed that the information be passed on to the business owner.

She met the business owner on January 16^th and told her of the pregnancy.

After that she says attitudes to her changed.

She was advised of discrepancies in her work and of complaints about her by her co-workers. When she contacted one of them, a doctor to verify this he said that he had not made any complaint.

On one occasion she was criticised for being a few minutes late although in fact she had been on office business.

In respect of the discrepancies, they related to a variation in lodgements and the ‘End of Day’ records for the business. She did not understand what exact response was expected from her.

She accepts that she underwent initial five day training in September and was told on December 8^th 2016 that she would be required to undertake a second training session for one day, which she did. This dealt with all aspects of the reception function including the recording of transactions.

It is also agreed that she met the owner on February 4^th and the complainant signed a report of this meeting which was submitted in evidence.   She was given a list of items which required improvement over the following two weeks.

Following this meeting she was sent spreadsheets outlining the discrepancies and she responded to these on February 8^th.

She disputes that a second meeting took place prior to the encounter on February when her employment was terminated.

The respondent stressed that at the commencement of her employment the complainant was given five days training; three of these involve ‘shadowing’ an experienced worker on a supernumerary basis.

The business uses a customised software package which is in general use in its sector and the complainant had told the owner that she had five years experience of working on it.

In early December 2016 the owner gave direct evidence that she was alerted in general terms to discrepancies which had been identified by her book keeper and another manager.

This was the point at which it was decided that the complainant would have to undergo further training.

Also in her direct evidence the owner said that she went on annual leave from December 20^th until January 16^th.

Prior to her departure she requisitioned further investigation of the discrepancies.

She also stated that she was not aware of the complainant’s pregnancy until she was told by her on January 16^th 2017. She had initially intended to raise the matter with the complainant on that day but decided not to do so. She had only been given the detailed spreadsheets that day.

The owner said she was pleased to learn of the complainant’s news and wished her well. The workforce of sixteen in the respondent business is exclusively female and pregnancy and maternity leave is something she copes with on a continuing basis.

In due course she met the complainant on February 4^th.

The topics discussed at this meeting included recording and reporting of discrepancies, her attitude, sickness record and she was given a list of items which required improvement over the next two weeks. These included the discrepancies in the ‘End of Day’ reconciliation, liaison with the accountant but also in stock taking and the need for an improved attitude and better team working.

She also gave evidence of a second meeting dated February 10^th but she accepted that it may not have happened on that day. However it took place after the complainant replied to her regarding the spreadsheets.

Detailed evidence was given of the discrepancies between receipts at the clinic and monies lodged at the bank.

They were significant.

The spreadsheets were exhibited in evidence.

In September the total lodged was €6056, which was €4683 less than receipts. Other figures were, October €8063, €2428 shy, and January (after the complainant’s second training session) there was an equally inexplicable surplus of €331. The witness stated that it has still not been possible to get an explanation of how these discrepancies arose although the problem ended with the departure of the complainant.

The witness denied that the complainant’s pregnancy had any bearing on her decision to terminate the employment. The problem had been identified before she became aware of the pregnancy and steps taken in December to correct it.

It was the failure of the complainant to show any insight about the problem or to seek assistance that a decisive factor. She appeared not to have learned from any of the training or have any awareness about it.

In relation to the probation period she says that all employees are placed on a six month probation.

The letter of termination dated February 13^th outlined in detail the discrepancies and the respondent’s dissatisfaction with the complainant’s response. It identified these, her sick leave record (twelve days) and a number of ‘lates’ as the basis for her not passing the probationary period successfully.

She was given a month’s wages as a good will gesture.

In such cases where a prima facie case is made out the burden of proof passes to the respondent.

In this case the complainant felt that her situation changed following the communication of her pregnancy, leading to the termination of her employment.

Pregnancy is a protected condition for very good reasons and were there to be substance in the alleged behaviour of the respondent it would represent a serious breach of the Employment Equality Act.

The following is a good summary of the position;

The Equality Tribunal and the Labour Court have taken a pro-active approach to protection of pregnant employees. [….] The case law of the Equality Tribunal and the Labour Court shows a strong emphasis being placed on Article 10 of the Pregnancy Directive which requires an employee to cite ‘duly substantiated grounds in writing’ where a pregnant worker is dismissed.

‘Employment Law’ eds Murphy, Regan; 2017 at 17.108. M. Bolger, C. Kimber, C. Bruton.

In order to rebut the case and meet the burden of proof a respondent must show that the conduct complained of was not related to the pregnancy.

In other words, it must show that where an action follows a previous action, the first does not cause the second despite the appearance of having done so; sometimes referred to as ‘false causality’ and defined as ‘the mistaken assumption that because one event follows another, the first event caused the second’.

This is a matter of evidence and the question is whether there was an explanation independent of and unrelated to the pregnancy which justified the respondent’s actions.

I conclude that there was.

The evidence of the nature and seriousness of the problem related to the discrepancies in the receipts and bank lodgements was highly persuasive.

It is also clear that those concerns predated any knowledge of the pregnancy.

The respondent might have been clearer with the complainant at an earlier stage as to the nature of the problem (the recording discrepancies, although I accept that she only had an outline indication of them in December), the purpose of the second tranche of training and the improvement which was to be expected.

There were undoubtedly some deficits in how the respondent acted which might have had greater impact in a case under the Unfair Dismissals Act, for example. However, for the purposes of this complaint they are nonetheless evidence that a problem had been identified well before the complainant made known her pregnancy and it soon became a very serious one.

Another way to frame the question is; ought the respondent have done nothing on account of the complainant’s pregnancy? I do not think the law requires this; merely (and merely is a lot) that there be no hint of discriminatory treatment arising from the pregnancy.

The owner of the business was a credible witness and is a health care professional. While I base my decision primarily on the verifiable sequence of facts as outlined above unrelated to any aspect of the pregnancy her rebuttal of the suggestion that the complainant’s condition played any part in her decision was convincing.

The letter of termination well meets the requirements referred to in the extract above from the respected textbook ‘Employment Law’ and I am satisfied as to their veracity on the basis of the evidence adduced at the hearing.

The complaint fails.

For the reasons set out above I do not uphold complaint CA-00010416-001 and it fails.

Pregnancy, discrimination, dismissal.