Complainant

Respondent

Parties

Dympna Boyce

Ras Medical Limited Auralia

Representatives

Sinead Likely, McInnes Dunne Solicitors

William Egan & Associates Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00014792-001

05/10/2017

The complainant commenced employment as a receptionist with the respondent on 21 February 2017. The complainant is alleging that on notifying the respondent on 24 May that she was pregnant, she was discriminated against (i) in her conditions of employment (ii) subjected to harassment, (iii) victimised following making a complaint about the treatment and (iv) discriminatorily dismissed. Her employment was terminated on 4 July 2017.

1.1 The complainant states that on 24 May 2017, she notified the CEO Mr. Mc that she was pregnant. Up until that point, no issue regarding her performance and/or conduct was raised with her by the respondent. The complainant alleges that since she notified the respondent of her pregnancy, she started to experience a marked difference in the attitude of the CEO Mr. Mc towards her. The complainant states that in the following weeks, Mr. Mc became increasingly rude and dismissive towards her. The complainant states that she was then informed that, at a meeting between Mr. Mc and a colleague of the complainant, Ms. SC (Receptionist) and Ms. AR (Patient care co-ordinator) on 16 June 2017 (at which the complainant was not present), Mr. Mc for no obvious or apparent reason made disparaging comments to Ms. SC concerning the complainant despite the fact the purpose of the meeting was nothing whatsoever to do with the complainant. The complainant submits that in that meeting Mr. Mc referred, inter alia, to the complainant having “dropped the ball” and “making mistakes”. In this regard, the complainant alleges that Mr. Mc referred to an alleged “mistake” the complainant had made when ordering a quantity of product when, the “mistake” in the quantity of product delivered to the respondent on that occasion was, in fact, made and acknowledged by the supplier and was not the fault of the complainant. The complainant alleges that he then followed those remarks with a comment that “[he] knows [the complainant] is pregnant.”

1.2 The complainant states that following being made aware of the comments Mr. Mc made about her at that meeting, she raised her concerns with Dr. S, Clinical Director of the respondent company, regarding the nature of the comments and specifically the reference made by Mr. Mc to the complainant’s pregnancy in the context of the disparaging remarks concerning the complainant’s alleged “mistakes”. The complainant contends that Dr. S confirmed to her that he would ask Mr. PC (Marketing Manager) to meet with both her and Ms. SC (to whom the remarks were made) to further investigate the matter. The complainant states that Mr. PC met with Ms. SC on 21 June 2017 to discuss the matter. The complainant states that then Mr. PC met with the complainant upon her return to work following a week of certified sick leave on 28 June 2017 to discuss her complaint and her concerns. The complainant submits that at this meeting, the complainant was informed by Mr. PC that, once his investigation into the matter had concluded, he would be issuing a report on same. The complainant states that she never received said report and submits that only documents/notes furnished to the complainant in connection with her complaint to Dr. S made on 19 June 2017, and in respect of Mr. PC’s subsequent “investigation” into the matter, were furnished to her on foot of a data access request made to the respondent after her employment was terminated. The complainant contends that it is curious to note that there is no note included in those documents furnished to the complainant of Mr. PC’s meeting with Ms. SC on 21 June or of his meeting with the complainant on 28 June.  

1.3 The complainant states that in advance of her meeting with Mr. PC, she had prepared a typed note for her own reference highlighting the concerns she wished to discuss with Mr. PC. The complainant states that she has concerns as to why a copy of this note although given to Mr. PC by the complainant was not included in the documentation forwarded to her on foot of her data access request. The complainant maintains that at a weekly staff team meeting the next day, 29 June 2017, at which the complainant was taking minutes, Mr. Mc moved the discussion away from the set agenda items of the meeting to raise what he referred to as “other issues”. The complainant submits that Mr. Mc then informed the team that “a certain person is having an identity crisis” and that he “found the whole situation ridiculous”. The complainant alleges that Mr. Mc then went on to refer to “certain vibes in the office”. The complainant submits that these comments were clearly directed at her in connection with the complaint she had made about him. The complainant states that the fact these comments were made by Mr. Mc in a public setting in front of the complainant’s peers left her feeling distressed, humiliated and intimidated.

1.4 The complainant states that the following week, on Tuesday 4 July, Mr. Mc requested to speak with the complainant without any advance notice or warning being given to her as to the purpose of said discussion. The complainant states that she assumed Mr. Mc wanted to speak to her regarding her complaint that was being investigated and followed him in to his office. The complainant contends that Mr. Mc then proceeded to tell the complainant that he “heard she was having some problems” and that “she was unhappy”. She states that he then went on to say that he “did not know if there was any way of resolving this”. The complainant submits that she was confused by Mr. Mc’s comments and asked him if he was aware that she had made a complaint about him which Mr. Mc. confirmed that he was aware of the complaint. The complainant states that she explained to Mr. Mc the reason she made the complaint and her concerns regarding the reference to her pregnancy in the context of his comments, Mr.Mc then said “it sounds like there are a lot of accusations flying around here”. The complainant states that Mr. Mc then made reference for the first time directly to the complainant regarding alleged “mistakes” she had made. The complainant submits that when she queried this, the examples given to her were that she had put a call through to him on one occasion the previous week in which she had incorrectly identified the caller to Mr. Mc and that on one occasion, she had not moved cash out of a drawer at the reception desk into a filing cabinet (which was unlocked) located in a side room (which was also unlocked) off the reception area before she left for the evening. The complainant submits that when she asked Mr. Mc why he had not raised these “issues” directly with her at any stage previously, he failed to provide any response and instead confirmed to the complainant that he had no option but to terminate her employment.

1.5 The complainant submits that she was shocked at this turn of events and she asked Mr. Mc if Dr. S was aware of his decision to which Mr. Mc confirmed to her that Dr. S had “left it to him”. The complainant states that the meeting then ended leaving her extremely distressed and upset. The complainant states that she subsequently received a letter confirming her termination of employment and setting out the purported reasons for same, which although dated 4 July 2017, was only received by the complainant by post on 18 July 2017. The complainant contends that in light of the nature of the complaint she had made against Mr. Mc, which was under investigation at that time, it is inexplicable that it should be “left to him” to make any assessment of her alleged performance and/or conduct or that he would be given the authority to make any decision concerning her employment. The complainant submits that not only had she lodged a complaint against Mr. Mc arising from his alleged discriminatory comments and his general conduct towards her since she confirmed her pregnancy but his purported decision to terminate her employment was made prior to the respondent’s purported investigation into the complainant’s complaint having concluded in accordance with its own grievance procedure and is clearly based on Mr. Mc’s own personal affront at the fact that the complainant made said complaint in the first place and the nature of same.

1.6 The complainant states that the circumstances leading up to and surrounding Mr. Mc’s purported decision to terminate the complainant’s employment makes it clear that her dismissal was inextricably connected to her pregnancy contrary to the employment equality legislation. The complainant submits that this is evident not only from Mr. Mc’s comments to Ms. C on 19 June 2017 regarding the complainant’s alleged “mistakes” which he clearly linked to the fact of her pregnancy but also from his general attitude towards the complainant after he became aware of her pregnancy, the baseless nature of his alleged “issues” with her and his reference to “accusations flying around” in the context of his confirming her dismissal. The complainant also states that not only is it plain that the alleged “issues” raised by Mr. Mc concerning the complainant’s performance and conduct, which he is attempting to assert formed the basis for his decision to terminate her employment, could not, on any objective view, be considered to be matters of any level of seriousness so as to justify dismissal, these allegations have been made without any prior reference to the complainant and without affording her any form of due process whatsoever or opportunity to comment on same in any way, either formally or informally via the respondent’s own disciplinary procedures or via any form of performance improvement process. The complainant cites the following caselaw in support of her case, Dekker v Stichting Vormingscentrum [1990] E.C.R. 1-3491 in relation to the entire period of pregnancy and maternity leave constituting a special protected period. Other caselaw cited is Trailer Care Holdings Ltd. V Healy EDA 8/2012 and BT Ward Ltd. t/a Subway v Sandra Gegeckeine EDA 1625 and the European Court of Justice decision in Webb v EMO Air Cargo Ltd and Brown v Rentokil Ltd.          

2.1 The respondent denies the allegation of discrimination and submits that no prima facie case has been established by the complainant. The respondent maintains that the case advanced by the complainant is that she felt her situation with Mr. Mc (CEO of the respondent company) changed following her communicating her pregnancy and that this led to the termination of her employment on the basis of her pregnancy. The respondent states that the complainant’s focus is entirely on her interactions with her line manager Mr. Mc (CEO). The respondent submits that the complainant makes no allegation against any other employee of the respondent. The respondent maintains that Mr. Mc was not the decision maker in respect of the decision to terminate her contract and states that the decision to terminate was taken by the Director of the Company, Dr. S who maintained a contemporaneous record of what motivated his decision – lies, breach of trust, lack of respect, bad vibes, unhappy environment, failure to communicate distrust of the CEO and members of staff. The respondent argues that these issues were collectively viewed by Dr. S not to be fixable resulting in the decision to terminate the contract pursuant to the discretion vested in the respondent to terminate the contract at any time during the probationary period. The respondent argues that if the CEO is the sole party against whom discriminatory acts are alleged, which he is, but he was not the dismissal decision maker, how could a dismissal decision by someone against whom there are no discriminatory allegations made, be found to wholly, substantially or partly to have dismissed the employee on grounds of gender and pregnancy. The respondent states that there is not a scintilla of evidence offered against Dr. S that he was in any way mindful of the complainant’s gender or state of pregnancy when he made his decision. The respondent states that Dr. S and Mr. PC have their notes of their interactions with the complainant and the issue was never at any time raised as a grievance with either of them.

2.2 The respondent argues that the evidence of the decision maker, Dr. S and of the other members of staff who have given evidence support the existence of an independent/unrelated to pregnancy explanation. The respondent contends that universally the complainant had interpersonal problems with all the staff and it never occurred to anyone that the complainant’s difficulties in these relationships and in doing her work competently were not the reasons for the ending of her probationary employment. The respondent submits that the case made out by the complainant is primarily based on assertions. The respondent maintains that the performance issues with the complainant arose long before she had informed her line manager of her pregnancy and this is the sworn evidence of the line manager and other witnesses. The respondent also submits that the refusal to engage in the performance review process was a deliberate act on the part of the complainant who knew well that the process would document her underperformance and inability to engage and get on with her work colleagues and those she was accountable to. The respondent submits that the complainant lied about her state of knowledge of an e-mail sent to her on 19 June 2017 by the CEO requesting a meeting with her to discuss her staff assessment, or any e-mail that afternoon as she alleged she was too upset to open her e-mails. The respondent submits that the evidence presented clearly establishes that the complainant knew well the contents of that e-mail. The respondent states that it was that knowledge which prompted her to circumvent the inevitable assessment by going to Dr. S to make a complaint against the person who would carry out the assessment, the CEO Mr. Mc. The respondent further submits that the complainant then deleted the e-mail in an attempt to conceal the fact that she did know its contents when she failed to respond to it.

2.3 The respondent also submits that following the announcement the complainant’s pregnancy, other issues of a much more serious nature occurred thereafter which again established that the complainant had given false explanations in respect of further omissions on her part and that there was no basis for a continuing relationship of trust. The respondent states that trust of staff and the integrity of their word is of paramount importance in a hospital and once that does not exist patient care and confidential information are compromised and are at serious risk. The respondent insists that omitting to place orders for medical supplies is entirely different in terms of an outcome to a Barman forgetting to order a tray of soft drinks when directed to do so by a Bar manager. The respondent contends that the complainant made a grievance complaint which was initially largely predicated on assertions of false allegations and in particular a false allegation regarding a significant amount of cash. The respondent asserts that when Dr. S politely pointed out that the complainant could not have put the cash away as she had stated as he had found it and dealt with it, the complainant suddenly and without explanation dropped the issue and did not raise it with Mr. PC. The respondent submits that this was most surprising as it was a very serious matter. The respondent contends that in the same breath, the complainant contended that no issues had ever been raised with her relating to performance until the date of the termination of her employment. The respondent states that the complainant has contradicted herself. It states that in a note she purported to give to Mr. PC (which the respondent states she did not), she acknowledged that she had difficulties with the CEO saying that he was very critical of her from day 1 in the job. The respondent submits that there is a complete contradiction in the case now advanced that there were no issues with the CEO until after the complainant announced her pregnancy. The respondent asserts that no complaint is advanced that she was treated differently in the workplace from the point at which she announced her pregnancy to Dr. S who was the decision maker as regards her dismissal. The respondent asserts that if the decision maker dismissed the complainant on grounds of pregnancy then surely the acts of discrimination would have started at the time the decision maker became aware of the pregnancy. The respondent states that Dr. S’s awareness was significantly earlier than when the complainant announced her pregnancy to the CEO Mr. Mc.

2.4 The respondent maintains that the complainant who, without cause or explanation or proof, in raising the issue of trust of her line manager and other members of staff in her grievance and in this complaint, has defamed the characters of her fellow staff by imputing their honesty and truthfulness while offering no basis for such a serious charge and she has done so in circumstances where she has been less than truthful and honest in her dealings with the respondent company. The respondent asserts that no evidence has been adduced that Mr. Mc and other members of staff were untruthful and dishonest in their dealings with the complainant. The respondent submits that the employer employee relationship had patently irretrievably broken down and Dr. S was correct in his assessment that the relationship was not fixable. The respondent states that aside from the issues of trust and honesty, it is also plain that the complainant was not contributing to the well-being of the workplace and it appears clear that none of the complainant’s fellow employees were able to get on with her. The respondent argues that the complainant’s position was untenable once she defamed her Line Manager and work colleagues alleging they could not be trusted. The respondent submits that in this case, it is the position that significant problems had been identified (in a health service unit) prior to the complainant making known her pregnancy and that these problems, post the announcement of her pregnancy became significantly exacerbated moving on to an entirely new level.

2.5 The respondent asserts that the complainant deliberately did not submit to the staff performance review process and complete the prescribed form as requested of her on 19 June 2017. The respondent contends that the complainant has lied about this matter as is established by the schedule of e-mails and the evidence of the IT consultant. The respondent asserts that the complainant did receive and must have opened the e-mail at 14.07 on 19 June having opened all other e-mails that afternoon and having sent 15 e-mails in the course of that afternoon, between 14.07 and 16.16. The respondent submits that the complainant had an opportunity to articulate all bad and unsatisfactory issues she perceived in the workplace by engaging in the appraisal process and by completing the Discussion Points sections which contained 9 different headings under which written particulars of matters relevant to her position could have been addressed. The respondent maintains that the complainant sidestepped the process by invoking a grievance directly with the hospital Director, Dr. S and ignored a process designed, not just to evaluate her performance but also to accommodate any bona fide issues she had concerning her working conditions. The respondent states that the only document she submitted to Mr. PC in support of her grievance was one telling people how in the complainant’s opinion the hospital ought to be run which might have been appropriate in a performance review process but was in no sense relevant to the initial issues raised which Dr. S noted and documented. The respondent submits that the complainant’s engagement with Mr. PC ultimately mutated into her suggestions as to how the hospital ought to be run.

2.6 The respondent asserts that there is not even a hint of discriminatory treatment arising from the complainant’s pregnancy. It states that the track record of its Clinic is exemplary, not just in terms of the fact that it has historically dealt with pregnancy scenarios in a manner which has been praised by those concerned but also the Clinic and its Medical Director, by his personal actions. The respondent states that the Clinic, its CEO, its Medical Director and its staff clearly have collectively the most favourable disposition towards the promotion of family values and propagation. The respondent submits that Dr. S’s integrity and his history of having funded personally fertility treatment for a member of his staff must be taken into account. The respondent asserts that each of the witnesses that presented for it are each in their own discipline credible witnesses. The respondent contends that Dr. S is a Senior Health Care Professional and none of the witnesses attended under the respondent’s direction and all came on a voluntary basis. The respondent submits that it was open to the complainant to apply for witness summonses in respect of members of staff who would support her allegations of pregnancy and gender discrimination. It submits that the onus of proof at all material times is on her. The respondent submits that the failure of the complainant to even request the attendance of witnesses let alone seek to compel their attendance draws an inference that she knew well there was no one in the respondent’s employment who would support her allegations. The respondent states that notwithstanding this, the complainant saw fit to ascribe certain comments in her complaint which have been emphatically denied by the alleged author of said comments and that person presented herself voluntarily at the hearing.

2.7 The respondent submits that the sequence of facts as is established by the evidence and the records is indicative that no aspect of the complainant’s pregnancy formed a part in Dr. S’s decision to terminate the complainant’s employment. The respondent asserts that no complaint was made or issue raised with Dr. S that the complainant was being discriminated against nor were such complaints made to Mr. PC. The respondent submits that this case has been presented on foot of a written complaint which, in respect of one very important thread, is based on evidence of what one person says another said where it was never intended to have the other person present to confirm or deny the passing of such remarks. The respondent further states that the persons present at the meeting in respect of which the alleged evidence was reduced to writing in the complaint, have each maintained that no such comments were either made by them or others of their interaction with the complainant. The respondent asserts that the complainant’s case is entirely predicated on the factual error that the CEO Mr. Mc discriminated against her following her announcement of pregnancy. It submits that her complaint, only composed after she secured Data Disclosure, has been tailored to name the CEO as the sole culprit for acts of alleged discrimination. The respondent submits that the complainant wrongly thought the CEO Mr. Mc was the decision maker. The respondent states the complainant in her own words said she did not trust the CEO that he was on her case from Day 1. The respondent submits that the complainant made it clear to other members of staff that she did not like or get on with the CEO. The respondent submits that the Mr Mc was not the decision maker who was responsible for the complainant’s dismissal. The respondent states that the complainant could only have been dismissed on the grounds of gender and pregnancy if the act/s of discrimination complained of had been directed by Dr. S for which there is no supporting evidence but ample evidence of a dismissal occurring for a multitude of reasons wholly unrelated to pregnancy.

2.8 The respondent submits that there was nothing to advantage it through the dismissal as could be associated with pregnancy as pregnancy did not impose any financial burden or inconvenience of any nature, kind or description on the respondent. The respondent contends that it is adequately resourced to provide all required pregnancy accommodations and maternity leaves for male and female employees without any appreciable effect as would give rise to unfavourable treatment for pregnant employees in any sense occurring. The respondent submits that pregnancy is simply not an issue for the company. The respondent contends that the history within the company shows positivity towards pregnancy and to the families of all employees. The respondent submits that where conflicts in evidence have arisen they must be viewed by reference to the complainant’s credibility and absence of candour and the manner of presentation of her case. The respondent maintains that if the complainant’s complaint is accepted, it means that Mr. Mc, Dr. S, Mr. PC, Ms. L, Ms. R, Ms. C and Mr. D have all conspired to give false evidence at the hearing. The respondent submits that the complainant has told lies in her evidence at the hearing. It further submits that the complainant has given false evidence, not only in relation to her pregnancy being the spark which ignited discrimination against her, but in relation to her work failures, including her lack of duty in attending to safeguarding a significant amount of her employer’s cash but also about not seeing the contents of the e-mail of 19 June 2017 from Mr. Mc requesting a meeting to conduct a performance review. The respondent submits that the complainant gave evidence of not having seen the contents of the e-mail or any e-mail that afternoon as she was too upset to open her e-mails. The respondent contends that this was the reason offered for her ignoring her line manager Mr. Mc’s e-mail. The respondent asserts that the complainant said she did not see the contents specifically until having returned to work, having been absent on sick leave for one week from 20 June. The respondent further states that no evidence was presented by the complainant that anything out of the ordinary had occurred that day as would give rise to the complainant becoming so upset that she was unable to face opening any of her e-mails. The respondent states that in contrast, a significant amount of documentary and oral evidence has been presented at hearing which exposes the complainant’s evidence on this matter to have been grounded on lies. The respondent states that the evidence puts beyond doubt that the complainant did open her e-mails on the afternoon of 19 June and responded to many e-mails received that day. The respondent maintains that, in all, evidence of 15 e-mails were provided at the hearing from the complainant’s sent box, sent by the complainant between 14.07 and 16.18 on June 19; a period during which the complainant said she did not open any e-mails as she said she was too upset. The respondent submits that the log also shows that the complainant received 5 e-mails that afternoon with the e-mail at 14.07 received from Mr. Mc having been deleted. The respondent asserts that it is notable from the log that at the very time Mr. Mc’s e-mail was delivered to the complainant’s desktop, that the complainant was actually sending at that very time an e-mail to Ms. R and others at 14.07. The respondent submits that with regard to the e-mail log, it shows that e-mails were received by the complainant from DW (14.26), DK (14.28) DW (14.35) and FB (15.14). The respondent submits that all the e-mails received by the complainant on the afternoon of 19 June were replied to after they were received. The respondent submits that the log for 19 June also shows that on that afternoon, the complainant sent Mr. Mc no less than three different e-mails. The respondent highlights that of particular significance is the fact that the e-mail from Mr. Mc seeking the meeting with her that day and which was copied to Ms. R, and is to this day in Ms. R’s inbox, has been deleted from the complainant’s e-mails. The respondent further submits that at the hearing the respondent’s IT consultant had a written report and gave oral evidence in this regard.    

2.9 The respondent submits it is a riddle as regards to the person who deleted Mr. Mc’s e-mail of 14.07 on 19 June. It also questions as to how the e-mail could not have been in the complainant’s face, given the fact that she was at her computer sending an e-mail at that particular minute it was received in her e-mail account. The respondent states that the complainant has barefacedly lied at hearing with a view to extracting compensation from the respondent based on a bogus and phony story she concocted that she was discriminated against by Mr. Mc because she was pregnant. The respondent submits that the only association that pregnancy had in relation to the complainant and her work was the fact that she used it to swerve acceding to the appraisal review towards the end of May when she was summoned by Mr. Mc to a meeting at which she announced her pregnancy and in effect collapsed the meeting.

2.10 The respondent states that in relation to the question of who initiated the meeting at which the complainant announced her pregnancy to Mr. Mc; Mr. Mc gave testimony stating he initiated the meeting. The respondent states that this fact is substantiated by Ms. SC as in her testimony at hearing Ms. SC stated “later on, after our accreditation, she told me that she has been requested to attend a meeting with S {Mr. Mc} my emphasis. She remarked that she thought it was the best time to announce her pregnancy.” The respondent also states that in relation to the cash issue, Dr. S took the cash from reception rendering it impossible for the complainant to replace that cash in the drawer as she asserted she did at the hearing. The respondent states that there is a conflict here, in that, the complainant’s complaint regarding the cash was articulated to Dr. S at their meeting of 19 June when she asserted she was the subject of false allegations by Mr. Mc, however the respondent states that due regard must be had to the fact that the matter was never thereafter mentioned by the complainant nor was it mentioned by her to Mr. PC.

2.11 The respondent submits that in relation to the complainant’s evidence that she only dealt with e-mails very occasionally in the workplace, in some instances only a few times a day, the respondent submits that the complainant was being clearly untruthful and that it is established by the e-mail logs which were made available at hearing which demonstrate that the complainant actively received and responded to e-mails within minutes of receiving them. The respondent also reiterates that it is notable that on the afternoon of 19 June when the complainant said that she was too upset to deal with the e-mails that she sent no less than 15 e-mails and received 5 e-mails, one of which was deleted. The respondent also states that Dr. S and Mr. PC received a complaint from the complainant that she was not invited to a Christmas party and the complainant further elaborated on this by stating to Mr. PC that this failure to extend an invitation had also happened to another employee. The respondent makes the point that the complainant was not employed at the time the Christmas party took place. In conclusion, the respondent submits that the evidence of all of its witnesses was that the complainant had interpersonal issues with every member of staff and further that she had such issues both before and after the announcement of her pregnancy. The respondent denies the allegations by the complainant of discrimination and victimisation. It submits that no evidence has been proffered to link her termination of employment to her pregnancy or family status.  

Testimony of Ms. IL

Ms. IL is a Receptionist Sales Administrator, she is 7 and a half years working in the company. She was involved in the second interview with the complainant and stated when the complainant was advised of the hours required to be worked i.e 10.30 – 6.30, she appeared to be very displeased with same. Ms. IL said the complainant’s personality was very intense and she seemed difficult to work with, that she was negative and snappy. She also stated that the complainant did not take directions well; she was told to order some staplers but had not done so and had to be reminded. Ms. IL stated when the complainant was requested to pull charts for patients, she got very antagonistic. She said mistakes were an everyday occurrence with the complainant.

Testimony of Mr. Mc

He stated he is CEO of the company and is with the respondent 4 years. He stated that there were performance issues with the complainant, post not being collected, answering machines not dealt with, orders not coming in as they should. Mr. Mc asserts that he would call the complainant aside for example about botox orders and she would respond “Stephen, you’re going to kill me, I didn’t make that order”. Mr. Mc stated that confusion around orders was becoming a big concern, in particular given health and safety issues in a hospital setting. Mr. Mc stated that there was a lot of feedback from the team that the complainant was very difficult to work with. Mr. Mc stated that he wanted the complainant to succeed and in late April he asked her to work with him in relation to the impending accreditation process which was a very important job for the business. He started to observe that things were not happening as they should. Mr. Mc said that within 1 / 2 weeks he had to push the complainant away things were not happening in a timely and efficient manner in fact he said “it was total carnage”. Mr. Mc submitted that the money going missing was a big issue that there was cash and cheques to the value of €3,500 in an envelope which was around a day’s takings and the money went missing when the complainant was at the desk. Mr. Mc said the complainant was adamant she put the money in a drawer in the side room. Staff were 2/3 days pursuing said money as discreetly as they could. However, Mr. Mc stated that Dr. S had spotted the money and taken it. Mr. Mc said this issue caused massive anxiety and resulted in a serious breakdown in trust. Mr. Mc states that he had flagged to the complainant since May the need to carry out an appraisal. Mr. Mc stated that all new employees are subject to appraisal during their probationary period. He states that he sent an e-mail to the complainant on 19 June at 14.07 and that two hours after receiving said e-mail, she approached Dr. S to make a complaint about him. Mr. Mc stated that the situation with the complainant was unsustainable particularly the issue regarding the money and trust and Dr. S instructed him to terminate her employment. Mr. Mc said it would be have been very easy for him to kick the problem down the road until after the complainant’s maternity leave. However, Mr. Mc said that he canvassed the opinion of many of the complainant’s colleagues and they all confirmed that they could not work with the complainant. Mr. Mc stated that he tried to discuss other options with Dr. S but Dr. S advised him “the situation was not fixable and she has to go”. Mr. Mc said that he wanted to discuss all issues regarding performance after the accreditation but the complainant was evasive and he had no other option but to send the appraisal to her by e-mail. Mr. Mc stated that all new employees get the appraisal form during the probationary period. Mr. Mc states that previously on 24 May, he was going to have a meeting with the complainant in relation to the appraisal process and raise performance issues with the complainant but at the start of the meeting the complainant announced she was pregnant and Mr. Mc felt in the circumstances that he had to suspend the meeting.

Mr. Mc upon being asked by the complainant’s legal representative about his document regarding minutes of the meeting he had with the complainant stated that he had taped the conversation but after 10 or so minutes the tape ran out.

Dr. S’s Testimony

Dr. S is the Medical Director of the respondent company and he is the main surgeon at the hospital. Dr. S submitted that he deals with all issues relating to the medical side and the CEO Mr. Mc deals with all the operational matters. Dr S stated that the complainant had told him about her pregnancy in May and he congratulated her on same. He states that at 4 pm on 19 June, the complainant asked to speak with him, she said she was unhappy with Stephen and he had accused her of certain matters. Dr S stated that the complainant commenced by saying there was mention of money that she placed in the drawer and Dr. S said;“don’t worry about the money, I took it, I picked it up 3 / 4 days later”. He said the complainant had issues with Mr. Mc and felt Mr. Mc was accusing her of matters that were not her fault. Dr. S states that the meeting lasted 15/20 minutes. Dr. S stated that he then had a meeting with Ms. SC. Dr. S stated that following the meetings, he requested Mr. PC to go on a fact-finding mission regarding disharmony amongst staff and to report back to him.

Dr. S said ultimately he formed the view on 19 June that “trust was gone”, he was also concerned about medical safety; he noted the complainant was on probation and there were a lot of issues with her and she didn’t gel with the organisation. Dr S stated that he is a very busy in his work and did not have time to dedicate to these types of issues, i.e. an employee coming to him about issues with the CEO and he had long patient lists to be dealing with. Dr. S said “ that’s not going to work with me”. Dr S spoke about how he was supportive of staff who are pregnant and having personally funded fertility treatment for an employee previously.

Mr. D – IT Consultant

Mr. D states that he carries out IT support systems with the company since 2008. Mr. D gave testimony stating that he examined both the complainant and Mr. Mc mailboxes and confirmed that the e-mail was sent from Mr. Mc’s laptop at 14.07 on 19 June 2017 to the mailbox of the complainant which was one of the PC’s at the reception area. The e-mail was also copied to Ms. R and is still recorded in her inbox for that date. Mr. D also stated that 15 sent e-mails are recorded in her sent box at various times from 14.07 on that date to the last one sent that day at 16.18.

Ms. AR’s Testimony

Ms. AR is employed as a Patient Co-ordinator. She has been with the company 4 years. She stated that the complainant had interpersonal issues with staff. She said that there were performance related issues before she announced her pregnancy. She said there was a lot of change happening in the company, a change of roles, changing to a new office and lot of upheaval and adjustment required to manage the change. She said that on 16 June, Mr. Mc was having a meeting with Ms. SC as she was just back from holidays and wanted to be informed of the changes afoot. Ms AR said she was invited to join the meeting to inform Ms. SC of developments within the team and to reassure her in relation to the changes taking place. Ms AR stated that the reference to identity crisis related to tensions taking place between sales staff and reception staff.    

Ms. SC’s Testimony

Ms. SC is a Patient Co-ordinator, she commenced with the company in March 2017. Ms SC states that the complainant told her she had been asked to attend a meeting on 24 May with Mr. Mc and that she felt Mr. Mc was trying to get rid of her. Ms. SC states that the complainant made reference to her that Mr. Mc was conducting an appraisal review. Ms. SC states that the complainant then replied that this would be a good time to announce her pregnancy to him.

Ms SC states that at the meeting of 16 June, Ms AR was called into the meeting a short while after it commenced. Ms. SC states that the complainant’s pregnancy was not mentioned, there was no comment to the effect of “dropped the ball”. Ms SC said the complainant was not mentioned and there was no reference made to her pregnancy. Ms SC states that the complainant had interpersonal issues with staff and there were performance issues prior to her announcing her pregnancy. Ms. SC states that the complainant did say to her on 19 June that she received an e-mail from Mr. Mc attaching an appraisal form and that this is what prompted the complainant to speak to Dr. S. Ms. SC said the complainant was upset after coming out of the meeting with Dr. S. Ms. SC said that she felt she was constantly being dragged into the complainant’s issues but Ms. SC’s issues related to lack of direction and confusion as to demarcation lines of specific duties/roles.    

Mr PC’s Testimony

Mr. PC is a marketing consultant and works with the respondent on a part-time basis two mornings per week dealing with various marketing issues. He submits that he was asked by Dr. S to make enquiries into “unsettling activity and disharmony amongst staff”. Mr. PC said there was separate roles relating to receptionist and patient co-ordinator duties, the complainant and Ms. SC were taken on and there was a lot of change and a steep learning curve and the organisation was experiencing a lot of changes. Mr. PC said that Dr. S requested him to meet the complainant and Ms. SC and have informal discussions and go on a fact-finding mission. Mr. PC states that at no time was he asked to produce a formal report. He said that he only ever received 1 page from the complainant. He states that there was a split in the camp and a lack of knowledge regarding defined roles. Mr. PC said the meeting with Ms. SC was brief. Mr. PC said he took notes on the day. Mr. PC stated that it was only at the end of the meeting with the complainant that she mentioned to him she was pregnant and he says from his notes it was the last thing he had written on his page of notes. He said that this demonstrates that the fact-finding exercise came about as a result of general difficulties regarding work roles etc as opposed to the complainant’s claim that she went to Dr. S stating that Mr. Mc was treating her unfavourably because of her pregnancy. Mr. PC said Ms. SC had less issues than the complainant that Ms. SC was not really into the bitchiness but more felt there was a lack of direction and there was a bit of conflict between Mr. Mc and the two girls.  

3.1 The issues for decision by me are whether or not the complainant was (i) discriminated against on grounds of her gender and family status in her working conditions (ii) subjected to harassment (iii) subjected to victimisation by the respondent and (iii) discriminatorily dismissed from her employment, in terms of section 6 of the Acts and contrary to section 8 of the Acts. In reaching my decision, I have taken into consideration all of the submissions, oral and written, made to me by the parties as well as the evidence given by the witnesses at the hearing.

3.2 The entire period of pregnancy and maternity leave constitutes a special, protected period as outlined in the Court of Justice of the European Union (CJEU) Decisions in Webb v EMO Air Cargo (UK) Ltd, Brown v Rentokil Ltd and Dekker v Stichting Vormingscentrum.

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.

In C-232/09 Danosa v LKB Lizings SIA [2011] CMLR 45, at 60, the CJEU said -

“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 pursuant to Article 10 of Council Directive 92/85, the EU legislature provided for special protection to be given to women, by prohibiting dismissal during the period from the beginning of pregnancy to the end of their maternity leave”.

The Court then continued at para 61 of the report;-

“During that period, Article 10 of Directive 92/85 does not provide for any exception to, or derogation from, the prohibition on dismissing pregnant workers, save in exceptional cases not connected with their condition, provided that the employer gives substantiated grounds for the dismissal in writing”.

3.3 As the appellate court under the Employment Equality Acts and a national court under the European Directives from which the Employment Equality Acts emanate, 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.’

3.4 It is clear that pregnant women are to be afforded special protection from adverse treatment, and in particular from dismissal. Equally it is clear that where a pregnant woman is dismissed the employer bears the burden of proving, on cogent and credible evidence, that the dismissal was not in any way related to her pregnancy. In the instant case, the complainant contends that she was dismissed during her pregnancy as well as adversely treated as a result of becoming pregnant and prior to her dismissal. Section 85A of the Act provides for the allocation of the probative burden as between the complainant and the respondent in cases coming with its ambit. This section provides, in effect, that the complainant bears the initial burden of proving facts from which discrimination may be inferred. If those facts are established and if they are regarded as of sufficient significance to raise an inference of discrimination, the onus passes to the respondent to show that the principle of equal treatment was not infringed in relation to the complainant.

For reasons already mentioned above, the special protection afforded to pregnant women against dismissal requires that where a pregnant woman is dismissed, the employer must bear the burden of proving that the dismissal was grounded on exceptional circumstances unrelated to pregnancy or maternity. Therefore, in every case in which pregnancy related dismissal is in issue, the factual combination of the dismissal and the woman’s pregnancy must, in and of itself, place the onus of proving the absence of discrimination firmly on the respondent.

Harassment/Conditions of employment

3.5 The first issue I must consider is whether or not the complainant was subjected to harassment by the respondent in relation to her conditions of employment. Section 14A (7) of the Act defines harassment as any form of unwanted conduct related to any of the prohibited grounds which has the purpose or effect of violating a person’s dignity and creating an intimidating, degrading, humiliating or offensive environment environment for the person. I note that the complainant informed Mr. Mc on 24 May in relation to her pregnancy. I am satisfied from the testimony taking at hearing that the complainant had told Dr. S and Ms. SC about her pregnancy significantly earlier - 2 weeks or thereabouts prior to notifying Mr. Mc. The complainant maintained that following notifying the respondent of her pregnancy, Mr. Mc’s attitude changed and he became rude and dismissive towards her. The complainant stated that she was informed by Ms SC that at a meeting of 16 June, Mr. Mc made remarks about the complainant in relation to her “dropping the ball” and “mistakes were being made” in reference to the complainant’s pregnancy.  The complainant submitted that she was not in attendance at said meeting but that Ms. SC who was present at the meeting relayed back to her what was said about her by Mr. Mc. I note that the complainant stated that she reported this matter to Dr. S in her meeting with him. In my view, it is unlikely that the complainant would have raised the contents of said meeting with Dr. S if she had not been told by Ms. SC that these comments were in fact made about her and for this reason I accept that the comments were made at that meeting.   I also note that a further acrimonious meeting took place on 29 June where the complainant was in attendance. The complainant stated that Mr. Mc made pointed remarks towards the complainant regarding “bad vibes” in the office and “a certain person having an identity crisis”. While the respondent tried to explain away these comments and argued that they were in no way related to the complainant but referred to the general disharmony amongst staff and the conflict between reception staff and sales staff; I find this defence unconvincing and lacking in credibility. In addition, I am cognisant of a text message sent from the complainant to Ms.SC on 22 June at 17.13 pm as follows “Also I feel shit over all that’s going on in work. The whole thing makes me feel uncomfortable but what was said last Friday was the final nail in the coffin”.   Having carefully examined all the evidence, I find that the complainant has established a prima facie case of harassment in relation to her conditions of employment on grounds of pregnancy contrary to the Act. In that regard, I find that the complainant was subjected to a humiliating and hostile environment by the derogatory comments made by Mr. Mc about her at the meeting of 16 June and further disparaging remarks directed to her at the meeting of 29 June.

Dismissal

3.6 In his letter to the complainant terminating her employment dated 4 July 2017, Mr. Mc states

“After you worked the late shift on 12th June, I was unable to locate the daily takings envelope and I asked you what happened to it. You were adamant that you put it away in the cabinet. When I pressed on this delicate issue, you insisted that you had put it in the cabinet and that you were clear that you always put it away. After 24 hours or more of intensive investigation, I eventually unearthed that the Medical Director had spotted the envelope open at the front desk and he had taken it for safe keeping. Your actions and your inability to clear up the confusion caused considerable anxiety in the organisation and has further eroded my belief that you are fitting into the organisation.

In the past week, you put a call through to me claiming it was DH, when it was in fact JK and when I went back to you to understand what happened, you said in a mail ”he said over the phone it was D”. This sort of confusion further erodes confidence.

Finally, the atmosphere over the past week or two combined with your antagonistic approach in a recent team meeting towards me has left me with the conclusion that you are not gelling with the organisation here. I have decided that the best outcome for you and the company is to terminate your employment immediately.”    

I note that the three issues listed above all transpired in the two/three week period prior to the decision to dismiss. In addition, Mr. Mc was aware of the complaint the complainant made about him to Dr. S. However, at the hearing the respondent advanced the following defences in regard to their decision to dismiss the complainant based on performance issues;

·         Issues regarding botox order

·         Delays in dealing with the post

·         Failure to photocopy patient information sheets

·         Orders relating to Johnson and Johnson

·         Not checking answering phones

·         Orders regarding Baxters not completed

·         Issues relating to Gases

The respondent maintains that these issues were a problem from the complainant’s commencement and that there was a continuation of these types of issues and problems during her tenure in the job.

3.7 Having examined the testimony of the various witnesses for the respondent, I find that there was extreme language used by witnesses for the respondent in relation to the complainant such as “no one could work with her”, “mistakes were an everyday occurrence with her” and Mr. Mc referred to her working with him on the accreditation process as “total carnage”. It begs the question that if the complainant, as the respondent stated, had performance related issues since her commencement with the company and as Mr. Mc stated in his testimony that there were “trust issues”, why was she asked to come on board with Mr. Mc to do the highly important and highly prestigious work on the accreditation process which was of huge significance and esteem for the respondent company. While the respondent states that there were ongoing issues with the complainant’s work performance, in my view, it did not substantiate these statements with any hard facts or evidence. If indeed this was the case, I would expect that these issues would be brought to the complainant’s attention at the material time in relation to the disciplinary procedure and some sort of remedial action be taken. In that regard, I would expect that if there were areas for improvement required by the complainant that these issues would be brought to her attention prior to her dismissal. However, this was not done and she had been given no opportunity to improve on the purported performance issues. In the dismissal letter above, she is given three reasons for termination of employment, quite frankly I found one of the reasons given i.e. putting a call through naming the wrong person as very lame and lacking credibility. I also note that upon questioning on behalf of the complainant’s legal representative of Mr. Mc regarding typed notes of a meeting he had with the complainant, he stated that he had recorded the conversation. However, the complainant was completely unaware that she was being recorded. I find that the covert recording without the knowledge of the complainant is quite telling and displays unfair and underhand treatment by Mr. Mc in relation to the complainant. While Mr. PC stated he was only asked to go on a fact-finding mission regarding disharmony in the office and at no stage he was required to produce a report; I note that he spoke to the two employees Ms. SC and the complainant but he said he did not speak to Mr. Mc. I find this at odds given that a complaint was made about Mr. Mc in the meeting the complainant had with Dr. S. Much was made by the respondent in relation to the money going missing and it caused such distress and anxiety but I feel at the material time it happened if it was such a major issue, why at that juncture was the issue not dealt with in a more comprehensive way by management.

3.8 At the hearing the Medical Director Dr. S stated that he made the decision to dismiss the complainant and that he asked Mr. Mc to inform the complainant. Mr. Mc insisted that he was just the messenger. However, Mr. Mc knew that a complaint was made by the complainant to Dr. S. In addition, in his testimony Mr. Mc stated it would have been very easy for him to kick the issue down the road until after the complainant’s maternity leave but he said he canvassed the opinion of many of the complainant’s colleagues and they all confirmed that they could not work with the complainant. This statement that Dr. S made the decision does not ring true for me on the basis of the testimony presented. Together with the fact that Dr. S said in his testimony that CEO deals with all operational matters and he (Dr. S) “is a very busy in his work and did not have time to dedicate to these types of issues”. In my view, Mr. Mc was very annoyed at a complaint being levelled against him by the complainant and given the sequence of events, I find that he made the decision to dismiss the complainant under the guise of so called “performance issues”.

Victimisation

3.9 Victimisation is defined by section 74(2) of the Act as follows;

“(2) For the purposes of this Part, victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to –

(a)    a complaint of discrimination made by the employee to the employer

(b)    any proceedings by a complainant

(c)     an employee having represented or otherwise supported a complainant

(d)    the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act

(e)    an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment

(f)      an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment or

(g)    an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.

This section of the Acts is based on Article 11 of the Directive 2000/78/EC on “Equal Treatment in Employment and Education” (The Framework Directive). Both the Acts and the Directive provide that victimisation occurs where a detriment is imposed on a worker “as a reaction to” a complaint or other protected act. The use of the expression “as a reaction to” connotes that the making of a complaint, or other protected act, must be an influencing factor in the decision to impose the impugned detriment although it need not be the only or indeed the principal reason for the decision. The wording of section 74(2) of the Act comports fully with this provision of the Directive. In order to make out a claim of victimisation under the Act, it must be established that (i) the complainant had taken an action of a type referred to at section 74 (2) of the Acts (a protected act), (ii) the complainant was subjected to adverse treatment by the respondent and (iii) the adverse treatment was in reaction to the protected action having been taken by the complainant.  

3.10 Having adduced the totality of the evidence in relation to the dismissal aspect of the claim, in my view, there are too many inconsistencies in the evidence presented by the respondent. While the respondent gave three reasons in its letter of dismissal for terminating the complainant’s employment; I note that the three reasons given related to issues which happened 2/3 weeks prior to her dismissal and all after the complainant had informed the respondent of her pregnancy. At hearing, the respondent proffered 7 pillars of work performance related issues as to the reason she was dismissed (at 3.6 above) but it did not substantiate these assertions with hard facts or evidence. The respondent advanced the position that it was entitled to terminate the complainant’s employment due to “performance issues” and the fact the complainant was in her probationary period. Having considered the positions of both sides, in my view the procedures adopted in the termination of the complainant’s employment were seriously flawed. I am satisfied that the complainant was not provided with details of performance issues; no warning was given that her employment was in jeopardy; she was not afforded the right to representation and consequently I am satisfied that she was denied natural justice. The decision to dismiss the complainant and the manner of the implementation were seriously lacking in adherence to the respondent’s own disciplinary procedures. The Labour Court has consistently held the view that it is imperative that an employer in a dismissal case must not only show that there were substantial grounds justifying the dismissal but also that fair and proper procedures were followed before a dismissal takes place. I am satisfied that the respondent has not discharged the burden of proof in the instant case. Having adduced the evidence, I find that the dismissal of the complainant was not unconnected to her pregnancy and was in retaliation for making a complaint about her treatment by Mr. Mc. The dismissal of the complainant falls squarely within the above cited section 74(2) (a) of the Act namely she complained to Dr. S about her treatment by Mr. Mc in connection with her pregnancy and subsequently she was summarily dismissed in a meeting with Mr. Mc.

3.11 For the sake of completeness, in relation to the evidence given by the IT expert, I accept his evidence that an e-mail from Mr. Mc was delivered to the complainant’s mailbox at 14.07 on 19 June with an appraisal form attached but I find that to suggest she went in to complain to Dr. S about Mr. Mc to avoid having to complete an appraisal form too far of a stretch in terms of credibility. I note that Mr. Mc was categoric in his testimony at hearing that all new employees are subject to appraisal/performance review during their probation. At hearing, I requested details of Ms SC’s appraisal given that she commenced at the same time as the complainant. In a supplemental submission following hearing the respondent stated that the employer records indicate that there was no formal pro forma appraisal of Ms. SC in 2017. Again, in my view, a further example of inconsistent evidence on behalf of the respondent and contradictory evidence. For all of the above reasons, I find that the complainant has established a nexus to her pregnancy and her treatment by the respondent and the respondent has not discharged the statutory or evidential burden of proving compliance with the Acts.

4.1 I have concluded my investigation in the instant case. Based on all of the foregoing, I find, pursuant to Section 79(6) of the Act,

(i) that the complainant was subjected to harassment in her conditions of employment by the respondent.

(ii) that the complainant was subjected to victimisation through dismissal by the respondent contrary to the provisions of Section 74 (2) of the Acts.

4.2 In considering redress, I find that compensation is the most appropriate form of redress in the circumstances of this case. I am mindful of the requirement pursuant to Article 17 of the Framework Directive that the sanction be “effective, dissuasive and proportionate”. With this in mind, I consider that the manner of the dismissal was seriously flawed and this is reflected in my award of compensation.

In accordance with Section 82 of the Act, I order the respondent to pay the complainant €27,000 (in relation to the victimisatory dismissal) in compensation for breaches of the Employment Equality Acts which represents a year’s salary. I also award the complainant €5,000 compensation for the effects of the harassment she was subjected to in her conditions of employment. The award is redress for the infringement of the complainant’s statutory rights and, therefore, not subject to income tax as per Section 192A of the Taxes Consolidation Act 1997 (as amended by Section 7 of the Finance Act 2004).

I also deem it necessary to further order that the respondent conducts a review of its procedures in relation to its employment policies to ensure compliance with the Employment Equality Acts.

Pregnancy, conditions of employment, harassment, victimisation, discriminatory dismissal