Complainant

Respondent

Parties

Bronna Ni Mhurchu

Acled Limited T/A Ann Gray's Total Health Pharmacy

Complainant

Respondent

Anonymised Parties

Bronna Ni Mhurchu

Acled Limited T/A Ann Gray's Total Health Pharmacy

Representatives

C. Ruigrok, B.L. instructed by James P Evans Solicitors

Gaffney Solicitors

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-00018780-001

27/04/2018

The Complainant commenced her employment with the Respondent on 7th November 2016 as Pharmacy Technician. Her employment was terminated on 6th November 2017.

The Complainant alleges that she was discriminated against by the Respondent on the grounds of gender and family status when she was dismissed due to her pregnancy. The Respondent refutes the claim.

The adjudication hearing was held on 12th February 2019. Additional submissions were received from the parties on 19th February, 28th February and 4th March 2019.

The Complainant submits that she commenced her employment with the Respondent on 7th November 2016. The Complainant claims that in or about mid-October 2017, she informed the Respondent of her pregnancy at about 10 or 11 weeks as she had some difficulties with illness and low blood pressure causing dizziness. The Complainant claims that she informed the Respondent even though she feared she would end up losing her job by informing her employer. The Complainant submits that the Respondent informed her that she was performing well and offered assurances that her pregnancy would not affect her employment. The Complainant submits that between the time of announcing her pregnancy to the Respondent and the termination of her employment she was subjected to hurtful, upsetting and disparaging remarks from employees of the Respondent. A number of these comments related to or referenced her pregnancy, her family situation and pregnancy in general.

The Complainant states that she was also made to undertake work which she believes was unsuitable to someone who was pregnant including lifting of heavier objects, walking up and down the stairs with these objects and also putting things up at heights. The Complainant states that she made the staff of the Respondent aware of this fact multiple times and requested some reasonable accommodation but she was ignored or dismissed. The Complainant says that she did not expect special treatment but some level of reasonable accommodation in the circumstances.

The Complainant submits that towards the end of October 2017, she made arrangements with Ms A of the Respondent to discuss difficulties she was having with her colleagues and also the imminent renewal of her Contract of Employment which was coming towards the end of the 12 months mark in or about 6th November 2017.

The Complainant submits that in or about Thursday, 2nd November 2017, the Complainant stayed behind after work to meet with Ms A and Mr B of the Respondent at approximately 6.30pm. The Complainant states that the meeting was primarily to discuss her dissatisfaction about an incident which had occurred two days previously between the Complainant and another employee, Ms S. The Complainant also raised the issue of receiving some accommodation to allow her to undertake her employment duties. The Complainant states that she felt she was not being taken seriously at the meeting and the issues raised were being dismissed by the Respondent and they started to undermine her work performance when there had previously been no question of her work performance and only praise for her efforts. The Complainant submits that towards the end of the meeting Mr B told the Complainant that he did not think that she was suitable for the job and further that he was going to have to investigate the issue between the Complainant and Ms S which took place two days previously. He then allegedly stated that the Respondent was not considering renewing the Complainant’s contract of employment but at the same time he could not fault the Complainant’s work performance. The Complainant claims that she was asked by Mr B to take paid leave on Friday 3rd November 2017 and to meet with Mr B and Ms A on the evening of Monday, 6th November 2017 to discuss whether or not the Respondent would be renewing the Complainant’s contract of employment. The Complainant states that she was upset and distress by this development. The Complainant claims that Mr B specifically commented to her prior to leaving the meeting that he was not taking these steps by reason of her pregnancy. The Complainant was puzzled and surprised by this comment as she had not mentioned her pregnancy to Mr B although she had informed Ms A.

The Complainant submits that she met with Mr B and Ms A at approximately 6.45pm on 6th November 2017 at her place of employment. The Complainant was informed at the meeting by Mr B that he did not think that Complainant was “a good fit for the job” (or something to that effect) and the Respondent is therefore not going to renew her contract of employment due to the fact that she was still on probation pursuant to her Contract of Employment. The Complainant claims that she was told that she would be paid three weeks’ pay and her holiday pay. The Complainant was asked if she had anything further to add but she was left feeling upset, confused and disgusted as she believed she had fulfilled her work duties to her employer’s satisfaction.

The Complainant submits that she believes that there was no legitimate complaint concerning her work performance. The Complainant argues that she worked diligently and earnestly and fulfilled all duties requested of her without complaint by the Respondent. The Complainant believes that the only basis on which she was dismissed was due to her having announced her pregnancy to the Respondent. The Complainant believes that there is no other reasonable or lawful basis on which she was dismissed and that accordingly she was unlawfully and unfairly dismissed from her employment.

The Complainant submits that her employment was terminated on 6th November 2017, at approximately 12 weeks and mere weeks after announcing her pregnancy. The alleged reason for the termination being that she was not suitable fit for the business, and there were customer relations issues in respect of two sales. The Complainant argues that she was not informed that there were issues, and while the Complainant was on notice of one of these issues before her employment terminated, the issue complained of was not a matter within the Complainant’s job remit (the Complainant claims that she was asked by a customer to provide a medication without a prescription). The Complainant claims that she was incorrectly identified as the subject of the other complaint. The Complainant submits that she did not receive any matters in writing in relation to her complaint made on 1st and 2nd November 2017. In relation to the purported investigation of which the Complainant later became the accused, she was not informed of any other party to the complaint, any statement or issues in relation to the purported investigation, nor the potential termination of her employment as a result of another complaint. The Complainant claims that she did not receive a letter setting out that her employment may be terminated after the investigation or the reason for the termination of her employment, as required by law.

Burden of proof

The Complainant submits that she informed the Respondent in mid-October that she was pregnant. She was offered assurances that her pregnancy would not affect her employment as she was performing well. When her employment was summarily terminated, the Respondent indicated, without reason, the termination was not because she was pregnant, it was because she was not the right fit for the business. The Complainant argues that it is abundantly clear that the Respondent was on notice of the Complainant’s pregnancy.

The Complainant notes that Article 2 of the Council Directive 92/85/EEC, Pregnancy Directive [1992] OJL348/1, defines a pregnant worker as “a worker who informs her employer of her condition, in accordance with national legislation and/or national practice.” The Complainant quoted article 10 of the Directive. The Complainant submits that in the decision of C-232/09 Danosa v LKB Lizings the Court said: “It is precisely in view of the harmful effect which the risk of dismissal may have in the physical and mental state of women who are pregnant, have recently given birth or are breastfeeding, including the particularly serious risk that pregnant women may be prompted voluntarily to terminate their pregnancy, that, pursuant to Article 10 of the Directive 92/85, the EU legislature provided for social protection for women, by prohibiting dismissal during the period from the beginning of pregnancy to the end of maternity leave”.

The Complainant argues that, the recent decision of the CJEU on C-378/17 Minister for Justice and Equality and the Commissioner of the Garda Siochána v Workplace Relations Commission & Others requires the WRC to ensure the proper application of the EU law and the requirement to give full effect of the requirement to comply with the EU law. In that regard, the Complainant claims that she did not receive any notification in writing setting out the reasons for the termination of her employment.

The Complainant claims that she raised issues with other employees’ behaviour and the requirement to provide some reasonable accommodation with some minor duties, those that required climbing to a height when she was suffering with low blood pressure. The Complainant states that she made a complaint that other employees were bullying her and making hurtful comments about her age and unplanned pregnancy. She claims that the Respondent was dismissive of the complaint and it was at this point, and for the first time, the Respondent raised issues in relation to the Complainant’s performance.

In dismissing the Complainant, the Respondent alleges that she was not a good fit for the business, yet did not raise issues prior to the termination. In fact, the Respondent assured the Complainant that her employment was secure and she was performing well. Therefore, the Complainant argues that the burden of proof rests firmly with the Respondent to establish that the termination was not related to the Complainant’s pregnancy. And in circumstances where the Respondent assured the Complainant that her employment was secure, this is an onerous burden.

Contract of employment

The Complainant submits that she was employed subject to contract of indefinite duration, as furnished by the Respondent. During the meeting on 2nd November 2017, the Respondent made reference to not renewing the Complainant’s contract. The Complainant argues that the Respondent was not entitled to make such statement where the contract was not subject to a fixed term contract. Further, the Complainant received an email stating the terms of her employment. It was not a term of the email agreement dated 14th October 2017 that the contract was for a fixed term.

Without prejudice, the Complainant cited BT Ward Ltd t/a Subway v Sandra Gegeckiene. The Complainant claims that she called a meeting to request provision be made in respect of climbing to a height and to deal with her allegations of bullying, inappropriate behaviour/comments and conduct by other employees (primarily one employee, Ms S). During this meeting the Respondent indicated an issue with the Complainant’s employment. The Complainant claims that she was not informed of any issues prior to the meeting which might affect her employment. The Respondent indicated that it intended to investigate the Complaint and suspended the Complainant (on the day she made her complaint and request for reasonable accommodation).

The Complainant was asked to attend a meeting on Monday 6th November 2017 at 6.45pm and the Respondent effectively summarily dismissed her from her employment stating that it did not deem her a suitable fit for the business. Further, the Respondent claimed that was not renewing the Complainant’s contact of employment and that she was still on probation.

Probation

The Respondent informed the Complainant that she was still on probation. The Complainant argues that this is completely incorrect as the probation period was for six months. The Complainant claims that she was never informed that she did not pass probation and was never informed her probation was subject to extension. The Complainant submits that she was subject to a performance review in August 2017 upon her return from annual leave. The Complainant claims that she was informed that she was performing well, but it was noted that she had taken a couple of sick-days. The Complainant suffers from a pre-existing condition which the Respondent was aware of.

Fair procedures

The Complainant, without prejudice to the foregoing, submits that she felt bullied in the workplace. The Complainant claims that the other employees, more senior in years and service, passed out of place comments about the complainant, her age and the pregnancy. The Complainant says that comments were also passed in her presence when customers purchased pregnancy tests. This caused the Complainant considerable hurt and upset in the two weeks before dismissal. The Complainant submits that she made a complaint to the Respondent and requested a meeting. Ms A and Mr B of the Respondent attended the meeting after work hours. The Complainant says that she set out her concerns and explained how she felt bullied. She claims that Ms A and Mr B did not take the complaint seriously and they were dismissive. She claims that they sniggered at the issues raised and requested the Complainant to repeat the offensive comments a number of times for their amusement. They purported to take notes, yet no such notes were made available to the Complainant by way of data request. The Complainant submits that the Respondent then raised two instances where alleged errors occurred. It was the first time issues affecting her employment had been raised with the Complainant. The Complainant was upset that the Respondent was now generating issues with her employment and questioning her competencies in her position.

The Complainant submits that she did not receive anything in writing and was not advised that she was the subject of an investigation in advance of the meeting called. She was not afforded the opportunity to have someone at the meeting.

The Complainant submits that she was told not to attend work on Friday or Monday, which was a suspension with pay, to allow the Respondent to investigate the matter. When she was asked to come back to a meeting on Monday evening at 6.45pm, the Respondent indicated that it preferred the other employees’ version of events. The other version was not put to the Complainant, she became the subject of a complaint but was not on notice of this. The meeting took approximately 10 minutes.

The Complainant submits that she was not afforded any procedures. The Respondent did not inform the Complainant of any investigation or disciplinary issues against her. The Respondent did not carry out an investigation pursuant to a disciplinary procedure as set out in the employee handbook. The Respondent suspended the Complainant on the basis that it wanted to investigate something. The Respondent said the Complainant was not suitable for the job, despite also maintaining that it could not fault her work. Before concluding the termination meeting, the Respondent told the Complainant that she was not being let go because she was pregnant.

The Complainant gave direct evidence at the adjudication hearing. She stated that she received her terms and conditions of employment which provided for 6 months probationary period. She stated that there were no issues brought to her attention and she was not informed that her probationary period was extended. The Complainant said that there was a review meeting in August 2017 and there were no issues raised except a few sick days. The Complainant submitted that she was 24 years of age and shocked to find out that she was pregnant. She was also quite sick so informed her employer of the pregnancy. She claimed that she asked another employee, Ms S for help with lifting and putting things up. The Complainant noted that some comments were made by Ms S about her pregnancy. She outlined that on one occasion Ms S told her that she was immature. The Complainant stated that she walked away but Ms S kept walking behind her and the Complainant told her to “f...k off”. The Complainant said that she was fed up. She asked Ms A for a meeting. She met with both Ms A and Mr B. The Complainant said that she apologised for what had happened. She said that the Respondent brushed off her issues and she was told that they would investigate the matter and come back to her on Monday. The Complainant noted that Ms S is a relative of Ms A’s. The Complainant said that on Monday she was told that what had happened was her fault. The Respondent informed her that it would not renew her contract as she did not pass probation. The Complainant said that she did not receive a letter of termination of employment, there was no investigation or disciplinary process.

In cross-examination, the Complainant confirmed that she asked other employees for some accommodation, she outlined that putting away orders included using 2-3 steps on a step ladder, there was some heavy lifting and high shelves as well. She confirmed that she did not provide anything from her doctor in that regard. The Complainant denied that she received a letter of 23rd August 2017 from the Respondent but she confirmed that at the meeting in August she was asked to separate her private and work life. However, she noted that other members of staff did share the details of their private lives. The Complainant also accepted that she used bad language. The Complainant confirmed that she was familiar with the handbook procedures and noted that she raised a grievance in relation to the alleged bullying when she asked for a meeting with the Respondent. She said that she wasn’t happy and wanted to clear the air but she was aware that she is making a complaint against the employer’s relative. The Complainant denied that there were any performance issues such as not getting on with customers and staff. She said that she went out of her way and on occasions she would even drop the medication to the customers’ homes, unpaid.

In relation to the probationary period, the Complainant stated that the six months would have expired in April 2017 and she did not receive any correspondence after the meeting on 21st August 2017. She claimed that she was not informed of any complaints against her.

The Complainant said that after the meeting on Thursday 6th November she knew that her job was gone as it was a “sister or me” matter. She contacted Citizens Information Bureau on the next day.

The Complainant cited Antoinette Bolger v Budget Fashion t/a The Peak DEC- E2015-125 EDA1616, Trailer Care Holdings Ltd. V Healy EDA128.

The Respondent accepts that the Complainant was an employee of the Respondent from 7th November 2016 until the termination of her employment by the Respondent on 6th November 2017. The Respondent accepts that the Complainant advised Ms A of the Respondent that she was pregnant on or about 3rd October 2017.

The Respondent submits that it is grossly inaccurate for the Complainant to contend that there were no issues in relation to her employment as the Respondent was required to speak to the Complainant on a number of occasions in relation to her attitude towards both staff and customers. In this regard, the Respondent met with the Complainant on 21st August 2017 during which the Complainant’s attendance record and “general behaviour” were discussed. The Complainant was advised that her probationary period was to be extended until the end of October 2017, at which stage her employment would thereafter be reviewed. The Respondent submits that, following further incidents involving the Complainant, the Respondent terminated the Complainant’s employment on 6th November 2017.

The Respondent submits that the termination of the Complainant’s employment was entirely related to issues regarding the Complainant’s attitude and was completely unrelated to the fact that the Complainant was pregnant. The Respondent has been in the business for a substantial period of time, during which numerous employees have been pregnant.

It is submitted that the Complainant’s claim is spurious and vexatious in nature and the Complainant should be in no doubt as to the reason for the termination of her employment which related to her attitude and nothing else.

The Respondent submits that it wanted to let the Complainant go at the meeting on 21st August 2017 but the Complainant was very upset and the Respondent decided to let her stay. The Respondent claims that when the Complainant asked for a meeting in October, the Respondent thought that she wanted to resign.

The Respondent accepted that the Complainant made a complaint about Ms S. The Respondent accepted also that the procedures were not followed and that the statements were not shared with the Complainant. However, it was submitted that the case was not whether or not the procedures were followed but whether the dismissal was pregnancy related and it is the Respondent’s position that it was not.

The Respondent argued that the Complainant received the letter dated 23rd August 2017 as in her submission she refers to “imminent renewal”. Therefore, the Complainant knew that there were some issues. The Respondent argued that in her evidence the Complainant admitted that she was asked to separate her personal and work life, that there was the attendance issue and behavioural issues.

Evidence of Ms M, employee (Manager)

Ms M read out her statement in respect of the events on 31st October 2017. The statement was emailed to the Respondent on 5th November 2017 at 7.35pm. In summary, the statement outlined the Complainant’s behaviour on the day and the conversation when Ms M said the Complainant “flipped” and shouted at Ms S using “swear word”. Ms M stated that the Complainant could “fly off the handle” over something minor. She noted that she was aware that the Complainant would volunteer information about her personal life and she was frequently distressed. She recognised that it is a stressful environment and maybe the Complainant took on too many tasks as the same time. Ms M noted that she would have approached the matter of the Complainant’s behaviour with the Respondent. Ms M noted that she worked with the Complainant three days a week and the Complainant did not tell her that she requires some accommodation, she did not say that there were any comments made about her and Ms M did not hear any comments. Ms M clarified that, although she holds a managerial role she does not deal with disciplinary issues.

In cross-examination Ms M stated that the Complainant displayed attitude issues pretty early. She accepted that she did not document it and she did not raise it with the Complainant as she thought the Complainant would not take it well. She noted that the events of 31st October were the “final straw”, she drafted her account of what happened and subsequently emailed to the Respondent.

Evidence of Ms L, employee

Ms L read out her statements in relation to events of 31st July 2017, 1st August 2017 and another encounter between the Complainant and a customer.

Ms L stated that on 31st July 2017 the Complainant arrived to work and it was obvious she had been crying. The Complainant then told a work colleague that she was going to report her boyfriend to the Gardaí as he was harassing her and her mother. The Complainant was in such a state that she was unable to work. She made one work-related phone call, spent 25 minutes emailing her boyfriend and sat in the back until 12.05pm when she went home. In respect of 1st August 2017, Ms L stated that the Complainant told Ms S and another employee to “shut up” as she was trying to concentrate. Ms L said that Ms S told the Complainant that she had no right to tell her to “shut up”, the Complainant stormed out of the shop returning 10-15 minutes later. Ms L also outlined an event when a named customer told her that he did not want to deal with the Complainant again due to her behaviour.

Ms L noted that the Complainant was good at technical issues but there was a problem with her dealings with customers.

In cross-examination, Ms L conceded that the notes she read out were written in November 2017. She stated that the events took place prior to the meeting between the Complainant and the Respondent on 21st August 2017 and she spoke to Ms A at the beginning of August about them.

Evidence of Ms A, Respondent

Ms A confirmed that she and her husband interviewed the Complainant. Her impression after the Complainant had started her employment was that she was a good technician but there were a number of issues such as sick leave, internet use and being loud in the dispensary. Ms A noted that subsequently a few other issues arose particularly in relation to how the Complainant spoke to other staff (abrupt, could be overstepping) and three incidents were brought to her attention by Ms L. Ms A said that the Complainant was asked to attend a meeting on 21st August 2017 and the intention was to dismiss her. However, the Complainant was very upset and Ms A stated that she felt that the Complainant was vulnerable in respect of her personal issues. Ms A asked her if she was ok and the Complainant said that she was seeing her GP and a counsellor. Ms A stated that it was decided not to dismiss the Complainant but to extend the Complainant’s probationary period. Ms A noted that there was an acceptance on part of the Complainant that personal issues affected her work but she did not accept that there was a problem with her customer service skills.

Ms A said that she personally handed the letter dated 23rd August 2017 to the Complainant in the dispensary and the Complainant was aware that there were behavioural issues.

Ms A said that on 3rd October 2017 the Complainant asked for a meeting after work. The Complainant told her that she was pregnant. Ms A said that she congratulated the Complainant. Ms A claimed that the Complainant did not mention any accommodation required or bullying. Ms A noted that she knew that there was tension between the Complainant and Ms S.

Ms A said that the Complainant asked for a meeting after the incident on 31st October 2017. It was agreed to meet on the next evening. Ms A confirmed that she has already chatted with Ms S and Ms M about the matter. She considered it to be a serious incident. Ms A denied that she or Mr B were “sniggering” at the meeting. Ms A said that the Complainant was asked to take paid time off as they wanted to consider the matter. Ms A said that she felt that they couldn’t keep the Complainant in the shop as they would lose staff and customers due to the Complainant’s behaviour.

In cross-examination, Ms A noted that issues were raised with the Complainant in April/ May in respect of her being loud in the shop, being abrupt, disrespectful and internet/phone use. Ms A conceded that no formal record of the conversations was kept.

The Complainant’s representative raised the matter of the meeting on 21st August 2017. It was pointed out to Ms A that ultimately it was a termination meeting not a review meeting. Ms A noted that it was a meeting to follow up on the incidents, which could result in termination. It was put to Ms A that there were no issues after 21st August, therefore the Complainant took on board the comments. Also, it was put to Ms A that when she met with the Complainant on 2nd November 2017 she had already spoken with other employees but did not inform the Complainant that the investigation had commenced and that she was the subject of investigation. Ms A stated that she thought they handled the meetings compassionately. She confirmed that no records such as termination letter, interviews notes were provided to the Complainant.

Evidence of Mr B, the Respondent

Mr B confirmed that he went in to the meeting on 21st August 2017 with the intention to terminate the Complainant’s employment. Mr B listed the matters covered at the meeting such as: absences to date, probationary period, language used, too much of personal issues at work, phone use, the incident of 31st July 2017 (issue with her boyfriend), issues described by Ms L, the Complainant shouting at Ms S, an issue with another employee (who had since left). Mr B stated that he was confident that the letter dated 23rd August 2017 was handed to the Complainant. He presented a text message from the Complainant to Ms A on 10th November 2017 requesting that “all paperwork is sent out to me including the letter I received in August from you…”.

Mr B agreed that the Complainant’s contract was not a fixed term one. He was asked to clarify the probationary period extension (started 7th November 2016 with 6 months’ probation). Mr B stated that the they were on leave in August, but no reason was offered for not dealing with the matter between May and August 2017. It was put to Mr B that the Complainant was not on notice that her probation was extended in May. Therefore, she assumed that she passed probation. Mr B stated that the Respondent was not happy with the Complainant and decided to have the termination meeting on 21st August 2017, which resulted in the extension of the probation. Mr B disagreed with the Complainant’s assertion that the period between 21st August and 31st October 2017 was uneventful. He noted that there were other performance issues. He also pointed out that the Complainant did not make a formal complaint as per the handbook.

The Complainant was employed by the Respondent on 7th November 2016 and she was dismissed on 6th November 2017. The issue for consideration in this case is whether the Complainant was discriminated against by reason of her gender and/or family status and whether the Respondent discriminated against the Complainant in dismissing her for discriminatory reasons or whether her dismissal was wholly on the grounds unrelated to her pregnancy.

In reaching my decision I have taken into account all of the submissions, oral and written, made to me in the course of the investigation as well as the evidence presented at the hearing.

Section 6 of the Acts stipulates: “Discrimination for the purposes of this Act

(1) 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,

(2) 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”),

…

(c) that one has family status and the other does not (in this Act referred to as “the family status ground”),

2A) 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.”

Section 8 of the Act provides as follows:

“Discrimination by the employer etc.

8.(1) In relation to— (a) access to employment, (b) conditions of employment, (c) training or experience for or in relation to employment, (d) promotion or re-grading, or (e) classification of posts,

an employer shall not discriminate against an employee or prospective employee and a provider of agency work shall not discriminate against an agency worker…”

Section 85A (1) of the Act states: “Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.” This means that the Complainant must establish primary facts upon which the claim of discrimination is grounded and then the burden of proof passes to the Respondent. In Determination EDA0821 McCarthy v Cork City Council the Labour Court pointed out that at the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the facts proved. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.

In Melbury Developments v Arturs Valpeters EDA0917 the Labour Court, whilst examining the circumstances in which the probative burden of proof operates stated that a complainant "must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn". It added that "the burden of establishing the primary facts lay fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule”.

Family status

Family status is defined under Section 2 of the Employment Equality Act, 1998 as follows:

“family status” means responsibility—

(a) as a parent or as a person in loco parentis in relation to a person who has not attained the age of 18 years, or

(b) as a parent or the resident primary carer in relation to a person of or over that age with a disability which is of such a nature as to give rise to the need for care or support on a continuing, regular or frequent basis,

and, for the purposes of paragraph (b), a primary carer is a resident primary carer in relation to a person with a disability if the primary carer resides with the person with the disability;”

There was no evidence adduced that the Complainant is a parent, in loco parentis or is responsible for or the primary carer of a person of or over the age of 18 with a disability that requires care and support on an ongoing basis. I find that the Complainant was unable to establish a prima facie case of discrimination on the family status ground as she did not satisfy the family status criteria under the Act.

Gender

The entire period of pregnancy and maternity leave constitutes a special protected period as outlined in the European Court of Justice decisions in Webb v EMO Air Cargo (UK) Ltd [1994] ECR 1-3567, Brown v Rentokil Ltd [1998] ECR 1-04185 and Dekker v Stichting Vormingscentrum [1990] ECR 1-3941.

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

·         “It is 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, have recently given birth or are breastfeeding, including the particularly serious risk that pregnant women may be prompted voluntarily to terminate their pregnancy, that, pursuant to Article 10 of Directive 92/85, the EU legislature provided for special protection for women, by prohibiting dismissal during the period from the beginning of pregnancy to the end of maternity leave” The Court then continued at par 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”

It is well established that discrimination based on pregnancy comes within the remit of gender based discrimination. This is expressly provided for in Section 6(2A) of the Employment Equality Act, as quoted above. In Dekker the Court of Justice has made it clear that pregnancy is a uniquely female condition and for that reason any adverse treatment of a woman on grounds of pregnancy is direct discrimination on ground of her gender.

The Labour Court in Trailer Care Holdings Ltd v Deborah Healy EDA128 referred to the fact that –

“the jurisprudential principle that discrimination on grounds of pregnancy constitutes direct discrimination on grounds of sex is now codified in Directive 2006/54/EC on the Principle of Equal Treatment of Men and Women (the Recast Directive). This Directive provides, at Article 2.2(c), that any less favourable treatment of a woman related to pregnancy or maternity leave within the meaning of Directive 92/85/EEC constitutes unlawful discrimination for the purpose of that Directive”.

It is well established in legal precedent that the dismissal of a pregnant woman raises an inference of discrimination on the grounds of gender. The Labour Court in Wrights of Howth Seafood Bars Limited v Dorota Murat EDA1728 stated as follows: “…the special protection afforded to pregnant woman against dismissal in European law 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. Hence, 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 onus of proving the absence of discrimination firmly on the Respondent.”

It is equally well settled law that only the “'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.” (O’Brien v Persian Properties T/A O’Callaghan Hotels DEC-E2012-010.)

I note the argument made by the counsel for the Complainant that Article 10 of the Pregnancy Directive requires an employer to cite “duly substantiated grounds in writing” where a pregnant worker is dismissed. This requirement has never been expressly implemented in Irish law. However, the Labour Court in Assico Assembly Limited v Corcoran EED 033/2003 held:

“Where the employee is dismissed while pregnant or on maternity leave, both the legislation and the case law states that the employer must show that the dismissal was on exceptional grounds not associated with her pregnancy and such grounds, in the case of dismissal, as a matter of law and in the case of discrimination as a matter of good practice should be set out in writing.”

It is common case that the Complainant was pregnant and that the Respondent was so aware. There was no dispute that the Complainant was dismissed while pregnant. The Complainant told the hearing that she had no knowledge that her employment was at risk as she had never been warned that her performance was below the required standard. Accordingly, I find that the Complainant has established facts which are of sufficient significance to place the burden of showing an absence of discrimination on the Respondent. It is therefore a matter for the Respondent to establish that there were other unrelated grounds that justified the dismissal.

It is the Respondent’s case that the decision to dismiss the Complainant was wholly on grounds of her behaviour and was unrelated to the fact that she was pregnant. The Respondent stated that the Complainant was a good technician. However, the Respondent argued that there was a number of behaviour and performance related issues which were brought to the Complainant’s attention. These included: her absence record, phone and internet use, bringing personal matters to the workplace which affected her frame of mind and performance, attitude towards and unacceptable interactions with other employees, loudness and language used in the dispensary, and issues with customers.

It was in dispute whether these issues were discussed with the Complainant between November 2016 and August 2017. The Respondent argued that the Complainant’s performance was monitored and she was informed of same. The Complainant, on the other hand argued that she received praise for her work. However, it was not disputed that a performance review meeting was held on 21st August 2017. There was conflicting evidence presented by the parties as to what was discussed at the meeting. The Respondent argued that all matters of concern as listed above were discussed with the Complainant at that meeting and, as a result she was put on probation until the end of October 2017. The Complainant, on the other hand, claimed that there were no issues raised at the meeting except a few sick days. In cross-examination she conceded that the she was also asked to separate her private and work life. The Complainant denied that she was informed of the extension of the probationary period.

The Respondent argued that a letter dated 23rd August 2017 outlining the details and the outcome of the meeting was hand-delivered to the Complainant. A copy of the letter exhibited at the hearing noted that the parties “discussed a number of issues that are concerning us regarding your absence record and general behaviour.” The letter further says that “Your probationary period will be now extended until the end of October 2017 at which stage your employment situation will be reviewed.”

The Complainant argued that she did not receive the letter. She claimed that prior to the meeting on 2nd November 2017 she was not aware of any issues which might affect her employer or, indeed of the extension of the probationary period. I note that in her text message to the Respondent on 10th November 2017 the Complainant is requesting that “…all my paperwork is sent out to me including the letter I received in August from you…” (emphasis added). Moreover, in the Complainant’s submission dated 5th July 2018 the following statement is made: “Towards the end of October 2017, the Complainant made arrangements to meet with [Ms A] of the Respondent employer to discuss …the imminent renewal of her Contract of Employment which was coming towards the 12 months mark in or about 6th November 2017.”

On balance, I find that the Complainant did receive the letter of 23rd August 2017 and was aware that her probationary period was extended until the end of October 2017.

In relation to the claim that the Complainant’s attendance record was not satisfactory, the Complainant argued that she suffered from pre-existing condition which the Respondent was aware of. The Respondent did not dispute that. I note that the records provided by the Respondent show some 7 occasions when the Complainant came in to work and left and one day when a medical cert was provided. It appears that, following the meeting on 21st August 2017, the Complainant was absent from work on one occasion. There were no reasons for the absences presented at the hearing. However, I accept the Complainant’s argument that, taking her condition into consideration, the absence record does not seem to be excessive.

There was no dispute that the concerns of the Respondent did not relate to the Complainant’s qualifications and competence as a technician. Rather, the Respondent was concerned about the Complainant’s attitude towards other employees and customers and her lack of separation of her private and work life. I accept that the Respondent was unhappy with the Complainant’s behaviour at work and that the Complainant was aware of the matters of concern raised by the Respondent at least on one occasion, at the meeting on 21st August 2017. I note that the Respondent submitted that the decision to dismiss the Complainant had been contemplated for some time. I find that, the Complainant was given an indication by way of an extension of her probationary period that her employment was dependant on required improvements. Having said that, I note that the Respondent has a detailed Disciplinary Procedure in place. The Respondent’s case is that the Complainant had a history of behaviour that warranted her dismissal. However, despite the alleged history of inappropriate behaviour the procedure was not instigated and, save for the letter of 23rd August 2017, there was no evidence proffered to show that the Complainant received any written warnings in relation to her conduct and there is no record to substantiate the Respondent's claim that she received verbal warnings. On the balance of evidence given by the parties I accept that the Respondent may have had reason to invoke disciplinary measures but it did not do so.

The Complainant requested a meeting with the Respondent in respect of the events of 31st October and (as per the Respondent’s notes) in relation to the “derogatory comments to her that day and previously eg about her father and naming the baby plus telling her to grow up.” The meeting turned into a disciplinary meeting. The Complainant was not given prior notice of the disciplinary meeting, she was given no opportunity to prepare a response to the accusations and she was given no opportunity to be accompanied to the meeting. I find that the decision to dismiss the Complainant and the manner of its implementation were seriously lacking in adherence to the fair procedures and the Respondent’s own disciplinary procedures, as outlined in the Employee Handbook. There was no evidence presented to suggest that other, non-discriminatory alternatives were considered. However, whether or not the disciplinary process and the extension of the probationary period were procedurally sound it is another matter.

It is well established both on the European and national level that an employer must show that the dismissal was on exceptional grounds not associated with pregnancy. In these circumstances, I find that the grounds for dismissal as advanced by the Respondent do not amount to exceptional circumstances not related to pregnancy.

I, therefore, find that the Respondent has not discharged the burden on it to show that the Complainant’s dismissal was for exceptional reasons unconnected with her pregnancy. Accordingly, the Complainant is entitled to succeed.

Having considered the evidence available to me I find that the Complainant has not established a prima facie case of discrimination on the family status ground.

I find that the Complainant was discriminated on the gender ground under Section 6 (2) (a) of the Act and and discriminatory dismissal took place contrary to section 8 of the Act. I believe that the appropriate remedy in the circumstances is an award of compensation. In accordance with section 82 of the Act I award the Complainant €15,000 in compensation for the discriminatory treatment suffered.

Pregnancy – family status- discrimination- dismissal