Complainant

Respondent

Anonymised Parties

Client Service Executive

Financial Services Provider

Representatives

Self-represented

Respondent management team

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00011789-001

07/06/2017

Complainant commenced employment with the respondent on 26/9/16 as a client service executive. Her gross monthly salary was €2666 and she worked a 40-hour week. She was serving a probationary period for the first 6 months.

She advised the respondent that she was pregnant on the 28/2/16.

She was advised that she had not passed her probation and that her employment was being terminated on 10/4/17.

She contends that she was dismissed because she was pregnant.

She submitted her complaint to the WRC on 7/6/2017.

The complainant was requested to attend a review of her 6 months’ probation on 10/4/17. She was advised that there would be no extension of her probation even though the client service manager advised her at the end of March / early April that she had made improvements. She advised that she had an email from her immediate line manager praising her work. She states that the respondent advised her at the meeting that they would not keep her long. There was no discussion of her work at the review meeting nor was she given an opportunity to discuss the immediate line manager’s commentary praising her work which gave no indication of dismissal. She came into the meeting with written responses ready. She was shocked when the respondent advised that she would not be kept on. The complainant asked if it was because of her pregnancy to which the operations manager replied” it is nothing to do with that and our maternity policy is crap anyway”. She was asked if she wished to say anything. The complainant advises that she asked if it would make any difference or was the decision already made. The operations manager said it would make no difference. The operations manager had previously told her at the February meeting that she could get an extension of her probation if there was a significant improvement.

In relation to one of the errors advanced by the respondent as evidence for their decision, she states that she paid 80% of funding as opposed to the agreed rate of 50%. The complainant states that she was not advised that she was only to pay 50% funding to a client. She states that she advised the respondent at the April meeting that she corrected all errors very quickly.

The complainant did not raise an extension of her probation at the April meeting

The complainant states that the written reasons given for her dismissal were not highlighted at the performance review meetings.

The complainant has not applied for jobs since leaving as she suffered from blood pressure. In addition, she advises that she will have a childcare problem after the baby is born.

The respondent is a family owned business,10 year in existence, providing cash flow to SMEs; they fund clients’ invoices in advance of them being paid by their customers and provide financial services to SMEs. It employs 24 full time employees 65-70% of whom are female. The age profile is predominantly under 42 years of age. Currently two members of staff are on maternity leave. During its 10-year existence, 7 members of staff have been or are on maternity leave, five of whom were promoted, one after her return form maternity leave.

The Standard probation period is 6 months. To date the respondent has terminated the employment of 3 other employees at the end of their 6-month probation period and extended the probation of 3 others.

The complainant received training and induction relevant to her role, provided by trainers on a one to one basis, group sessions, coaching by line manager, and face to face training. She was given opportunities and time to familiarise herself with the business and requirements of her role which demanded excellent attention to detail, efficiency, accuracy and time management.

Witness A. Operations Manager gave evidence that complainant’s core job was to reconcile ledgers in order to release funding to clients. The complainant received standard training and induction relevant to this which consisted of modules as well as coaching from the line manager and more senior colleagues. She was given written probation objectives to which she agreed.

The witness advised that for the respondent, attention to detail was paramount. The complainant was also informed about necessity to comply with company policy on IT usage and personal mobile phone use. This witness identified as the complainant’s manager in her contract advised her at her first objective setting meeting on the 7/12/16 of concerns at her non-adherence to company IT usage policy. She was also advised to take fewer smoking breaks. Normal ongoing support was agreed. The complainant did not raise any difficulty with any aspect of her role or work. At the meeting of the 7/12/16 the complainant accepted the objectives and agreed a Probation Period Personal Development Plan. Her line manager was identified as an ongoing resource.

Her first review meeting took place on 22/12/16 at which the respondent expressed concerns about an unacceptable level of errors with her work and her progression in the role to date. The respondent contends that the level of errors present in her work denoted a risk to the respondent’s business and checking arrangements were applied to ensure the complainant’s work was reviewed and corrected before it issued to the respondent’s clients. The errors impacted on funding. If the complainant omitted to feed data into the system this could endanger the provision of funding to clients. The respondent asked if she needed any additional support to do her job and the answer was no.

It was clear to the respondent that the complainant was struggling even though she had 9 years’ experience with a similar system and product.

On the 22/12/16 the following improvements were identified to the complainant.

Monthly reconciliations to be done.

Checking validity of client requests.

Ensure no invoices are outstanding because of a failure to check client details.

Charge service fees to clients.

More proactivity in getting to know clients; more detailed knowledge is necessary

Greater adherence to respondent’s values; avoid use of personal mobile phone during working hours. The complainant had explained that she had an ill relative but had extended her use beyond what the respondent felt was reasonable.

Further improvement was needed in not sending personal emails; 20 were sent in one day.

Witness B, line manager, advised that she did not receive any emails from the complainant, contrary to what was asserted, responding to the commentary /performance review by the respondent.

The second review meeting took place on 14/2/17 where both her former and current line manager attended. An improvement in the number of errors was noted but the respondent advised her that it was still at an unacceptable level and that her performance needed to improve more in order to pass her probation as she was not fulfilling the full spectrum of tasks required of her role. The complainant’s non-adherence to IT policy was again identified. A report of this meeting was emailed to the complaint on 20/2/17. At this stage the respondent was unaware of the complainant’s pregnancy.

On the 16/2/17 the complainant received training at a level of credit control 2 which is one level below her grade. This focussed on her knowledge gaps.

The complainant advised the respondent of her pregnancy on 28/2/17. The respondent carried out a health and safety assessment on 3/3/17. Throughout March ongoing support was provided to the respondent to enable her to implement corrective actions to deal with errors. She continued to require assistance to complete tasks. She was asked if she needed extra supports or longer breaks to which she replied no.

A review of her probation period was to have taken place late March but the complainant was on leave from the 28-31st March and returned to work on the 3/3/17. In advance of this meeting on the 3/4/17 the respondent supplied her with an email review of her probationary period and invited a response. They advise that they chased her for a response on 2 occasions and got a response on the 6/3/17. Due to the absence of the manager at a medical appointment, the earliest date was the 10/4/17. So, the respondent contends that it is inaccurate of the complainant to maintain that a review was delayed due to management.

A review of her 6-month probation took place on 10/4/17. The respondent relayed the following problems to the complainant:

ü  Lack of sufficient progress.

ü  A continuing unacceptable level of errors in 5 out of 8 objectives which posed a continuing financial risk to the company.

ü  Inadequate understanding of clients’ portfolios which is essential to her function of customer service executive.

ü  Unacceptable use of internet for personal use.

ü  Unacceptable use of mobile phone during business hours.

The respondent disputes the complainant’s assertion that a new manager was involved in this review. The respondent advised the complainant that the level of errors in her work, identified to her in previous one to one meetings on 22/12/16 and 14/2/17, and the level of improvement was insufficient to merit her passing her probation. The complainant replied that she expected as much. The complainant advised that she did not require any clarification nor did she require time to herself for a few minutes in order to respond. She became upset. The complainant then mentioned her pregnancy and advised that the reasons for letting her go were down to that. The respondent asked the complainant if she wanted to discuss the errors informing their decision. The respondent states that the complainant would not engage, became silent and then upset. She declined the offer to reconvene the meeting. The respondent disputes that the meeting was over in 10 minutes as alleged by the complainant.

The complainant’s pregnancy had no bearing on her performance review. The respondent states that the standard of her work gave them no basis to extend her probation

I am required to establish if the dismissal was pregnancy related and contrary to section 6(2)(f) of the Unfair Dismissals Acts 1977-2015, a provision which extends jurisdiction to complainants with less than 12 months service.

The burden of proof lies with the employer to prove on the balance of probabilities that the dismissal was unrelated to her pregnancy.

The EAT in a 2013 decision, UD 1519/2013, a pregnancy -related complaint, found the complainant to be unfairly dismissed as she was not advised that the meeting at which she attended could lead to her dismissal and the dismissal was considered to be procedurally unfair.

The adjudicator in ADJ 0002143 concluded that the dismissal was pregnancy related and contrary to the Unfair Dismissals Act, 1977 -2015 as the respondent’s behaviour changed dramatically and became hostile after the complainant gave notice of her pregnancy and the respondent’s evidence that she was unaware of the complainant’s pregnancy was not supported by the evidence.

These circumstances are not matched in the within case. The complainant was on notice of her uncertain hold on her job, that her employment beyond the 6 months’ probationary period was dependant on identifiable significant improvements. The respondent did not disclaim knowledge of her pregnancy nor did the complainant report any change in the respondent’s behaviour towards her after informing them of her pregnancy. The respondent provided evidence on a series of communications to the complainant, setting out specific concerns and requiring an improvement.

In O’Brien v Thomas Kiely t/a Thomas Kiely Catering UD 325/2013, the tribunal examined the case of a catering assistant let go because of the poor financial circumstances of the respondent company who selected her rather than another catering assistant. The complainant argued that her dismissal was pregnancy related. The EAT concluded that the respondent informed the complainant early on in her employment of the threats to the financial viability of the company and that the respondent had brought forward sufficient evidence to displace the statutory presumption set out in the Unfair Dismissals Acts, 1977-2015 by the Maternity Protection Act, 1994, that the termination of her employment was due to her pregnancy. Of particular interest to the tribunal was the supply of evidence concerning the precariousness of the company and prior to notification of her pregnancy.

The respondent in the within case provided evidence in a series of communications to the complainant, setting out specific concerns and requiring an improvement. The respondent had conveyed these concerns 10 weeks into her employment and at intervals thereafter and before she had advised them of her pregnancy. This is not disputed.

The complainant did not challenge the respondent’s analysis of her work performance on the 7/12/17, nor could she furnish evidence of having challenged their critical assessment of her work on 22/12/16. The complainant did not respond to the respondents email of 23/12/16 asking her to identify any training requirements necessary to fulfil her role. She did respond to the respondent’s concerns of the 14/2/17. The complainant did not dispute the validity of the respondent’s evaluation or that their requirements were unrealisable. But she suggested that she be provided with a reduced and fixed number of clients and reconciliations.

On 6/4/17 having been chased by the company she replied to the respondent’s commentary, supplied to her prior to the review of her performance meeting. While the respondent referred to improvements they were also clear that the level of improvement was insufficient to warrant her passing her probation. In her response to their critique, she did not dispute the claims made. She did not dispute the underperformance of 8 specific objectives nor the validity of the respondent’s observations. She said that she had since acquired information concerning clients which had been due in February, and highlighted as undone on 23/3/17, and subsequently rectified. She completed tasks and rectified the errors notified to her.

It is the respondent’s case that her pregnancy was a coincidence.

The complainant’s case was that it was her pregnancy alone which prompted her dismissal. What is telling is the absence of a rebuttal on the complainant’s part to the assessment of 22/12/16 and the absence of a challenge to the disclosed and ongoing concerns of the respondent and then subsequently to the reasons presented to her for the termination of her probation. The complainant seems to have laboured under the impression that she could get an extension to her probation and it is correct that her line manager did flag this possibility to her but not in an unqualified way. Upon enquiry, the option of extending her probation by 3 months was not taken up by respondent as the level of improvement required fell short of what was required.

Based on the reasons cited above and the evidence adduced by both parties I do not find that the complainant’s dismissal was wholly or mainly due to her pregnancy. This precondition is necessary to earn the protection of section 6(2)(f) of the Unfair Dismissals Act 1977-2015.

In accordance with section 2(1) (a) of the Act, I do not have jurisdiction to decide on this matter.

I do not uphold the complaint of unfair dismissal due to pregnancy and contrary to section 6(2)(f) of the Act.

Alleged pregnancy related dismissal; complainant on notice of respondent’s concerns prior to notification of pregnancy.