Complainant

Respondent

Anonymised Parties

A customer services advisor

A bank

Representatives

Caroline Doyle BL instructed by Mairead Nixon, Sean Ormonde & Co, Solicitors.

Bank Personnel.

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00022650-001

16/10/2018

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

CA-00022650-003

16/10/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00022650-004

16/10/2018

The Complainant commenced employment with the Respondent bank on 4th May 2018, she was employed as a Customer Service Adviser and her salary on commencement was €24,400 per annum.

The employment ended on 28th August 2018.

This complaint was received by the Workplace Relations Commission (WRC) on 16th October 2018.

The Complainant commenced employment with the bank on 04th May 2018. An induction event was organised in the Bank where the ‘Fast-track’ candidates met with the appropriate management team – Ms K became the Complainant’s line manager.

On completion of the APA programme, the Complainant had passed two out of the three aforementioned exams. The Complainant was the only individual within the ‘Fast-track’ cohort to fail an exam. The Complainant failed the Investments exam and said she would re-sit this exam in January 2019. It should be noted that the Complainant was working on the Term Loan team and therefore did not require the Investments exam in order to provide advice to customers as she could do so with the other 2 exams.

Following the completion of the IOB ‘Fast-track’ course, the Complainant and the other ‘Fast-track’ candidates, returned to the team on 18th June 2018. They were then provided with two weeks training to allow them talk to customers and sell products to them over the phone. This training involves guiding the Agent through typical conversations with customers, outlining the necessity of strictly following call compliance procedures and following the scripted dialogue set out for the Agent such as asking security questions.

On completion of the two-week DVS training, the Complainant, and the other candidates, were required to successfully pass a call simulation. The call simulation involves a test where the Agent is required to take a call from a fake customer (typically a Team Leader) and deal with their queries as they would with a real one. This simulation poses a number of basic queries to the Agent and they are expected to follow the standard security procedures and scripting protocols that they learned in their training and apply these to the call in order to demonstrate their understanding of what is expected in the role. Failure to pass this call simulation would result in the employee being deemed unsuitable for the role and their contract terminated. The employee is offered two opportunities to pass this call simulation otherwise they are deemed unsuitable for the DVS Agent role.

Those who attended the ‘Fast-track’ programme were informed of the requirement to pass the call simulation on numerous occasions including: their induction day; their return from the IOB programme; and during meetings with the Sales Manager.

On 29th June 2018, the Complainant failed the two call simulations. Normally, this would result in an Agent’s contract being terminated however in this instance it was decided that the Complainant would be offered another opportunity to pass the call simulation. Consequently, this offer was made to the Complainant with the provision that she would receive three additional hours of training. This training included focusing on the areas which scored poorly during the two call simulations and a number of role plays prior to the third simulation taking place. The Complainant subsequently passed the third call simulation.

On 11th July 2018, the Learning & Development SME, met with the Complainant in relation to her failure to adhere to the required compliance on outbound calls to customers. He made a file note of this meeting as well as further interaction on 12th July 2018 regarding these compliance issues.

On 12th July 2018, Mr D reviewed two of the Complainant’s calls and found that she was still not adhering to the correct procedures and raised this with Ms K (line manager). Subsequently, Mr D and Ms K, met with the Complainant to highlight their concern that she was still not adhering to the compliance process and, in particular, that the matters not being adhered to were areas which the Complainant had directly been helped with after her failed call simulations. Furthermore, the Complainant was notified of the necessity to adhere to the specific outbound call structures and failure to continue to breach calls would result in her contract being terminated. This was documented in a file note.

At the induction event for the ‘Fast-track’ attendees, it was highlighted by the DVS management team to the new recruits, which included the Complainant, that the 6-week course was to be treated like a normal work day and that all standard bank policies applied during the period. In particular, if they are going to be absent from the course on any day then they must notify Ms K / Mr H or an appropriate member of the DVS management team as per the Bank’s sick leave policy.

On the Complainant’s return to the Bank, Ms K met with the Complainant on 19th July 2018 in relation to her absences while on the ‘Fast-track’ programme. Ms K advised the Complainant that she did not adhere to the sick leave notification policy while she was on the course as she was required to do during the programme. This meeting took place following Ms K being in receipt of a list of individuals who were absent during the IOB programme and who failed to notify management accordingly. During this meeting, the Complainant advised Ms K that she was pregnant to which Ms K congratulated the Complainant and wished her all the best. Ms K created a file note of this meeting.

During July 2018, it became evident to Mr H that the Complainant was struggling in the DVS role and there were concerns around her ability to perform to the standard expected. This was evidenced in her failing an APA exam during the IOB programme, the two-week training course and her subsequent performance while on the phones with customers. Consequently, Mr H and Ms K met with the Complainant to discuss the performance concerns. During this meeting, Mr H noted his concerns and outlined that based on the Complainant’s performance to date he considered it unlikely that she would pass her probationary period. Mr H presented the Complainant with two options:

a)      That the Complainant would continue in her current role but highlighted that there was a steep threshold which she was required to meet. Mr H advised that if the Complainant wanted to remain in the role and believed she could meet this threshold then she would be supported in this however, the responsibility ultimately lay with her to meet the expectations and requirements of the role.

b)     That a Customer Service Advisor role could be sourced within the Distribution (branch) network and the Complainant could take an opportunity here. Mr H felt that due to the Complainant’s personable character and work history that she would be more suited to working face-to-face with customer than over the phone and the compliance requirements involved with these conversations. Mr H asked the Complainant to consider her options over the weekend but that the decision was hers and hers alone to make and that she would be supported with whatever decision she made.

After this meeting took place, the Complainant returned to Mr H and informed him that she would like to move to the branch network. Following this, the Complainant was provided with a choice of branches where positions were available and she subsequently chose the Dundrum branch herself.

On 18th July 2018, the Complainant moved to the Dundrum branch where she reported into Mr M, Branch Lead.

On 30th July 2018, Mr M met with the Complainant and set out her training objectives including customer service queries and becoming familiar with the systems used within the branch. When an employee commences employment within a branch, training is provided and includes training of the systems used and shadowing senior employees in the branch. This was provided to the Complainant on starting in the branch.

During the 30th July meeting, Mr M was required to remind the Complainant of the notification procedure in the sick leave policy and to ensure that she adhere to same going forward as she had breached this since her arrival in the branch.

On 14th August 2018, Mr M met with the Complainant in relation to her performance. This related to ongoing performance issues with the Complainant and surrounded the resolution of all errors associated with her name on the branch administrative diary and the requirement to ensure that no new entries were included in this diary. Mr M stressed the importance of adhering to all of the appropriate policies and procedures for the various branch systems during this meeting.

On 21st August 2018, Mr M met with the Complainant again. During this meeting, Mr M noted that the issues discussed in the previous meeting were still ongoing and there was no improvement in her performance since this meeting. Mr M outlined in this meeting that there were concerns over the Complainant passing her probationary period based on her performance and general behaviours. Mr M offered all additional supports to the Complainant at this stage.

On 28th August 2018, Mr M met with the Complainant and notified her that she had not successfully passed her probation period and that her contract was summarily being terminated. The Complainant was paid one week’s pay in lieu of notice.

Response to specific complaints

Discrimination based on pregnancy.

The Complainant contends that she was treated differently, based on her gender, to a male counterpart and that she was dismissed because of her pregnancy. This was not the case – The Complainant was not dismissed based on her pregnancy, rather a number of clear, contributing factors led to the termination of her employment.

It should be noted that when the interview process concluded for the ‘Fast-track’ programme, The Complainant was not the only woman to have been offered a position on the programme. Another woman was offered a place on the ‘Fast-track’ programme however subsequently declined the role.

The Complainant was not treated any differently to her male counterparts on the programme. As already established the Complainant was not performing in the DVS or branch based role. A very clear and defining factor of the Complainant’s dismissal was her poor performance behaviour and not meeting the expectations of her role.

In the DVS role, a number of concerns arose with regard to the Complainant’s performance.

The first area of concern was that she did not follow the correct notification procedure when she was absent during the ‘Fast-track’ course. Prior to attending the ‘Fast-track’ course, the Complainant was informed of the necessary process for advising management of her absence from the course and yet she still failed to follow this procedure. This was recorded in Ms K’s file note.

The second area of concern was the Complainant’s failure, on two occasions, to pass the call simulation exercise which was a fundamental aspect of her role. It was made very clear to the ‘Fast-track’ employees that should they fail the call simulation then they would be deemed unsuitable for the role. However, the Complainant, alongside one other ‘Fast-track’ employee, was offered a third chance to pass this exercise – this is not the norm and highlights the effort made to support the Complainant in her role. Additional training, mentoring and support was provided to the Complainant in order to ensure that she passed the third call simulation to which she subsequently did.

After this, issues continually arose with regard to the Complainant’s performance. There were constant breaches on her phone calls with customers. These breaches are very serious causes of concern and include asking security questions such as the customer’s full name, personal information and other identifiers. Failure to answer these correctly can result in fraudulent activity occurring on a customer’s account. There is very clear scripting which the Complainant was required to follow and she consistently did not do so during her time with the DVS team. The Complainant’s performance failed to improve despite additional training and support being provided to her by her team leader, Ms K, and the learning and development SME, Mr D.

The Complainant’s failure to consistently not adhere to the compliance regulations within the Bank was a breach of her contract of employment under point 16 – Duty of Care which outlines:

“You (the employee) are obliged to comply with both internal policy and regulatory requirements in relation to dealing with customers or potential customers.”

The Complainant repeatedly failed to comply with internal policy and regulatory requirements while performing in the DVS role.

The Complainant was fully aware that she was not performing in her initial role through multiple conversations with Ms K, Mr H and Mr D. The Complainant was notified in her meeting with Mr H and Ms K that she was not meeting the expectations of the role and that if she continued her current trajectory she would, most likely, not pass her probationary period. Mr H outlined the options available to the Complainant the first being to remain in the DVS role and the second being a move into a branch based role. Mr H made it explicitly clear to the Complainant that should she wish to remain in the DVS role then every support would be made available to her however an alternative role existed in the branch network where her personality and skillset might be more suited. Mr H made it clear that the option was entirely THE Complainant’s and that she would be supported in either decision she made. During this conversation, it was made clear to the Complainant that it was a different role to the one she was working in at the time.

After confirming to Mr H that she would like to move to the branch network, suitable Customer Service Advisor roles were identified in the branch network for the Complainant, she chose the Dundrum branch herself.

Despite the Complainant not performing in her role, Ms K and Mr H made every effort to find a suitable alternative role which matched her skillset.

The Complainant was not the only person on the ‘Fast-track’ programme to have been moved out of the DVS team due to poor performance. A male colleague, also on the ‘Fast-track’ programme, was moved under similar circumstances.

Of the six ‘Fast-track’ programme employees included in the Complainant’s cohort, three are no longer employed by the Bank and three are still working in DVS. Of the three no longer employed by the Bank, two of those individuals were moved to the branch network in order to help accommodate them and find a suitable alternative role for them, one of whom was the Complainant. The other male colleague who was moved to the branch has subsequently left the Bank of their own volition.

On moving to the Dundrum branch, the Complainant was provided with the standard training afforded to new Customer Service Advisors. This included an introduction to the systems used within the branch and the shadowing of a more senior member of staff. This is the standard form of training for any new employee within a branch. In fact, Mr M outlined a training plan for the Complainant.

For the Customer Service Advisor (CSA) role that the Complainant was performing, she did not require any APA qualifications to carry out the duties involved. On joining the Bank, it is however expected that a Customer Service Advisor would sit and pass these exams within a 12 – 18-month period. The Complainant was actually at an advantage going into the CSA position given that she had passed two exams already and had this knowledge to hand.

The Customer Service Advisor role does not involve providing financial advice to customers rather it is an administrative and guidance role. Employees cannot provide financial advice to customers unless they have passed the three core APA exams plus the Financial Advice APA. If a Customer Service Advisor provides such financial advice to a customer without the required qualifications, then they are acting outside the remit of their role and responsibilities. The Complainant would not have been asked, or expected, to provide financial advice to customers in her role.

On joining the Dundrum branch, immediate performance issues emerged with regard to the Complainant.

The Complainant failed to notify Mr M of her absence from work despite being informed on multiple occasions of the procedure by Mr H and Ms K. Moreover, Mr M advised the Complainant, once again, of this procedure within seven working days of having joined the branch. This had now become a consistent and repeated issue with the Complainant failing to notify the Bank of her absence.

It should be noted that the Bank had no issue with the Complainant being sick and unable to attend work. The issue was that she repeatedly failed to notify anyone of her absence from work therefore breaching the sick leave policy and not extending a common courtesy to her manager.

The Complainant did not perform well in the Customer Service Advisor role and repeated conversations took place between her and Mr M regarding her performance. These are documented and will be supported by oral evidence at the WRC hearing. Furthermore, Mr M notified the Complainant of her poor performance and that she was at risk of not passing her probationary period.

Alongside the Complainant’s performance issues, there were also behavioural concerns regarding her actions in the branch. These concerns included using loud, inappropriate language during personal conversations within earshot of customers and carrying out inappropriate personal transactions in the branch. Specifically, the Complainant purchased a dog from a customer in the branch, the Complainant subsequently returned the dog as she was dissatisfied with same and customer returned to the branch after the Complainant had left the company asking to see her – all within the branch. As per the Complainant’s contract of employment, point 15 outlines the expected ‘Behaviour and Appearance’ of employees:

“A high standard of personal behaviour and conduct is expected of all employees at work. In carrying out your duties and dealing with both internal and external parties you are placed in a privileged position of trust.”

The Complainant’s behaviours in this regard can only be considered as wholly inappropriate, highly irregular and cannot, in anyway, be condoned as appropriate within the branch or any professional working environment for that matter. Mr M raised this with the Complainant through an informal conversation and that such transactions should not take place within the branch.

Concerning the complainant’s contention that the Complainant was not informed of her poor performance and under the impression that she was doing well in her job, this clearly was not the case as in both positions the Complainant’s poor performance was addressed by the appropriate manager.

Regarding the notification of her maternity leave, the Complainant contends that she was ignored by HR when she raised her maternity queries. This was not the case. On 14th August, the Complainant contacted a member of the HR analytics team, who has no involvement with maternity leave, who subsequently redirected her query to the correct individual. HR responded to the Complainant on 17th August asking her what information she would like with regard to maternity leave. The Complainant did not respond to this email until 27th August. The Complainant was provided with all available information on the same date. It should be noted that the information provided to the Complainant was always available to her through the Bank’s intranet site. For the Complainant to suggest that her maternity leave queries were ignored by HR is simply incorrect and disingenuous.

The Complainant’s contract of employment was summarily terminated on the grounds that she was not performing in the DVS or branch-based role. Every opportunity was provided to her to find a suitable alternative role which she was accommodated with. The Complainant did not perform in this role and exhibited behaviours not in line with the Bank’s visions and values. The Complainant’s employment was not terminated based on her pregnancy, it was based on her poor performance and inappropriate behaviours.

At the time of the Complainant’s contract being terminated, there were 60 other women on maternity leave in the Bank. Furthermore, over the last five-year period seven women have gone on maternity leave in the first six months of them commencing employment. Of this seven, four have voluntarily left the Bank, two have had their contracts expire and one remains in employment. All seven women were retained by the Bank and returned following the completion of their maternity leave. To suggest the Bank would terminate someone’s contract based on them being pregnant is totally at odds with the Bank’s visions and values and it not a fair or accurate reflection of the Bank.

The Employment Appeals Tribunal found in the matter of Mulligan v Falcon Pharmacies, UDA986/2007 that the claimant’s dismissal was not related to her pregnancy. In this case, the employee’s contract was terminated during her probationary period as a result of inter alia her failure to notify management of her absence from work and to follow internal procedures as well as ongoing poor performance issues.

Payment of wages complaint

It is accepted that the Complainant has withdrawn the Payment of Wages claim.

Changes to the Complainant’s terms and conditions of employment

The matter of the Complainant being moved to the branch network has already been discussed. This movement was made in good faith following discussions with Mr H and Ms K as the Complainant was not performing in her role. In order to help facilitate her remain in employment with the Bank, a suitable alternative role was found for the Complainant which suited her skillset. This was done in fully acknowledgement and agreement with the Complainant. While she may not have been provided with an updated contract of employment, the fact of the matter is this was done in good faith and it is extremely disingenuous of the Complainant to suggest that it was done otherwise. While an administrative oversight may have taken place with regard to her being issued with an updated term of contract, the fact of the matter is that she was in full agreement and knowledge of this change of role.

The Complainant commenced her employment with the Respondent on 4 May 2018 as

a Digital and Voice Sales Agent on a full-time basis. As part of her duties, she was

required to take calls from customers in relation to loan matters. The role was based in

the Call Centre. The Respondent furnished the Complainant with a Contract

of Employment dated 3rd May 2018. The Complainant received a gross annual salary

of €24,000.00.

The Complainant was taken on with the Respondent alongside nine other men. She was

taken on as part of the Institute of Bankers Fast Track Programme (QFA). She was the

only woman in her intake. The Complainant was required to do written banking exams,

known as the Accredited Product Advisor (APA) exams. The Complainant studied

extremely hard for these exams and undertook same in June and July of 2018. She

passed 2 of 3 of the exams and was going to repeat her investment exam the following

January.

The Complainant performed well during her employment with the

Respondent was never the subject of any disciplinary complaint, investigation, finding

or sanction, and during her time there, she was held in high regard as to the standard of

her performance.

The Complainant discovered she was pregnant in or around June 2018 and advised her

Manager, of same in or around mid-June. The Complainant was expected to give birth in or around the 25th December 2018. The Complainant’s line manager took the Complainant aside and advised her that she felt the Complainant would better suit a position in the Dundrum Branch, as this was closer to her home. The Complainant began working in the Dundrum Branch at the end of June 2018. The Complainant never received any written notification in respect of the transfer to the Dundrum Branch.

When the Complainant moved to the Dundrum Branch, she discovered that the role was completely different to the role she previously had. Her Manager, Ms K had never explained this to the Complainant. The role was in Customer Services and the Complainant oversaw the customer services desk and was required to deal with multiple areas, including the transfer of monies both nationally and internationally, upselling insurance and credit cards and dealing with all the paper work that these responsibilities entailed. The Complainant was also required to deal with Investors in this role which was challenging as she was not fully qualified in this regard. It was an extremely fast paced environment in the Dundrum Branch and whilst her new Manager, Mr M provided her with some training, the Branch was understaffed and as such, training was minimal.

Despite the fact that the Complainant was effectively thrown in at the deep end, she

performed very well in the role. She was advised by Mr M that her sales were good, she had hit her targets. Mr M was always also aware that the Complainant was pregnant having been advised of same by Ms K.

In or around the 19th August 2018, the week before the Complainant was let go, she was advised that she was going to be moved to the cash desk as the person who was working there over the Summer was going back to college. She was advised that not only was she to take on this new role, but she was also going to continue helping at the customer service desk.

In August 2018, Mr M instructed the Complainant to email HR to let them know when she would be taking her maternity leave so that arrangements could be put in place. Some weeks beforehand, the Complainant had been provided with maternity work-wear by the Respondent. A member of staff from HR had provided the Complainant with the maternity gear in question.

Following on from this, the Complainant emailed HR on the 24th August 2018 to advise of her maternity leave dates. The Complainant cc’d her Manager on the email. Having

received no response, the Complainant emailed HR again the following Monday, 27th August 2018. Again, the Complainant received no response. The Complainant was aware of the Respondent rules and regulations in relation to maternity leave as there was a specific employee portal on the Respondent’s online website which dealt with same. The Complainant had given appropriate and timely notification in accordance with the Respondent regulations.

The following day, on 28 August 2018, the Complainant arrived into work as normal

and was completely taken aback when she was pulled aside by Mr M and advised

that she was not going to make her probation on purported reasons that her “paper work

was not up to standard”. In response, the Complainant informed Mr M that she was not provided with adequate training and she had to actively seek assistance from other staff members who were too busy themselves as the department was understaffed.

The Complainant was extremely distressed and upset by the news. There were no previous warnings, either verbally or written, and at all times she had been given the impression that she was doing very well and indeed, had been advised that she was to be given further responsibilities in due course. The Complainant had begun building her career with the Respondent, had sat and passed exams and was looking forward to a long future with the Respondent. She was left distressed not only by the fact that she was advised she was to be let go, but also the inevitable issues this presented in respect of attempting to secure alternative employment and the financial disadvantage she suffered while also pregnant.

On 28 September 2018, the Complainant emailed her Manager, Mr M to advise that she had yet to receive her last payment from the Respondent and that she was relying on it for rent. She subsequently emailed Mr P in HR to follow up in relation to her pay. She advised as follows: -

Hi P

I was let go from PTSB on 28 August and was told I would be paid a week in lieu

today…I was told I would be paid today and then I would receive my P45.

This has not happened, and I am extremely upset as to how I have been treated by PTSB

and HR. I have no rent for my landlord. This is not acceptable…

The Complainant was eventually paid the appropriate amount but it took some time for

the payment to be received and this caused her great stress in circumstances where she

was late in respect of paying her rent.

On 5 October 2018, the Complainant received a letter from Mr C in HR, entitled, ‘Departure from Company on 28/08/2018 and Negative Pay’. The letter stated as follows: -

…As a result of Late Notification and Availed Company Benefits when leaving the company, there is a negative pay showing on your payslip of €1,319.75. It is imperative that you reimburse this sum to (respondent name inserted) …within 14 days of receipt of this letter…

On 21 November 2018, the Complainant received a further letter from the Respondent in relation to the same matter. The letter requested again that the Complainant pay the outstanding sum of €1,319.75 to the Respondent within a period of 14 days and that if the Complainant failed to respond, further action would be taken.

The letters indicated that the Complainant owed the Respondent money for the exams she had taken. The Complainant was left extremely frustrated, anxious and upset in this regard as the position was that she had been let go by the Respondent, rather than having departed the Respondent of her own accord. The Complainant was in her late stages of pregnancy at this point and was extremely distressed by the matter. The Complainant received no further correspondence from the Respondent in this regard and no attempt was made to contact her to discuss the contents of the letters any further.

By letter dated 23 October 2018, the Complainant’s solicitor wrote to the Respondent advising of the Complainant’s intention to take a claim against the Respondent in the WRC and seeking the Complainant’s personal data pursuant to the Data Protection Acts. A reminder letter was served on 25 January 2019 and a further letter on 12 February 2019. The requests were ignored, and a complaint was subsequently made to the Data Protection Commissioner on 1 March 2019. The

Respondent has failed, refused and/or neglected to respond to the substantive allegations put to the Respondent as well as the data access request, pursuant to the Acts.

LEGAL SUBMISSIONS – DISCRIMINATION

The Employment Equality Acts, 1998 – 2015

Section 6(1) of the Employment Equality Acts, 1998 – 2008, provides that:

“…discrimination will be taken to have occurred where a person is treated less favourably than another person is, has been or would be treated in a comparable situation of the discriminatory grounds.”

The Acts make unlawful discrimination on the grounds of gender, marital status, family status, sexual orientation, religion, age, disability, race or membership of the traveller community. Further, claims brought under the Acts can be categorised as: (i)direct discrimination; (ii) equal pay claim; (iii) indirect discrimination; (iv) harassment and (v) victimisation.

Section 6(2A) of the Acts, specifically addresses the issue of pregnancy discrimination

on the gender ground. It provides as follows:

“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.”

Direct Discrimination

Direct discrimination arises where the less favourable treatment is based on a criterion

which is necessarily linked to a characteristic indissociable from the discriminatory

ground (Case C – 79/99 Schorbus).

In order to establish direct discrimination, it is necessary to prove that, but for the fact

that the Complainant falls within one of the discriminatory grounds, she would have

been treated differently. As such, it is necessary to identify an actual or hypothetical

comparator, in a comparable situation who is, has, or would be treated differently.

The Comparator:

It is respectfully submitted that, in respect of the Complainant’s complaint that shewas discriminated against by the Respondent on the basis of her gender andpregnancy, that the appropriate Comparator is Mr GS. Despite MrGSsharing a number of identical characteristics to the Complainant, other thanthe Complainant’s gender as relates to pregnancy, Mr GS was treated differentlyin his employment. On this basis, it is respectfully submitted that the Complainant wastreated in this discriminatory manner solely due to, inter alia, her gender and

pregnancy.

It is respectfully submitted that, in respect of the Complainant’s complaint that she was discriminated against by the Respondent on the basis of her gender and

pregnancy, that if the aforementioned comparator is in any way not applicable to any

aspect of the Complainant’s complaint of direct discrimination, that the Complainant is entitled to utilise a hypothetical comparator for those purposes. To this end, the Complainant maintains that a hypothetical comparator, in the Complainant’s exact position except for her gender, unlike the Complainant, would have been treated more favourably in the manner as outlined in the above paragraph.

The Burden of Proof:

The Complainant must discharge the burden of proof by showing that the difference

in treatment is due to discrimination on one of the discriminatory grounds. Once the

Claimant has made a prima facie case the burden of proof shifts to the Respondent.

The rule is required pursuant to EU law and its rationale was explained in Ntoko v Citibank [2004] ELR 116:

“This approach is based on the empiricism that a person who discriminates unlawfully will rarely do so overtly and will not leave evidence of the discrimination within the claimant’s power of procurement. Hence, the normal rules of evidence must be adapted in such cases so as to avoid the protection of anti-discrimination laws being rendered nugatory by obliging claimants to prove something which is beyond their reach and which may only be in the respondent’s capacity of proof.”

The burden of proof which must be satisfied by the Complainant was summarised in Minaguchi v. Wineport Lakeshore Restaurant as follows:

“It appears to me that the three key elements which need to be established by a claimant to show that a prima facie case exists are:

(i) that she is covered by the relevant discriminatory ground(s)

(ii) that she has been subjected to specific treatment and

(iii) that this treatment is less favourable than the way someone who is not covered by the relevant discriminatory ground is, has been or would be treated.”

The connection between the discriminatory ground and the alleged discriminatory acts is not to be established by way of motive or intention, but rather from objective facts that infer discrimination. This requirement is well captured in the following dicta from the decision in A Technology Company v. A Worker EDA0714:

“A person with a disability may suffer discrimination not because they are disabled per se, but because they are perceived, because of their disability, to be less capable or less dependable than a person without a disability. The Court must always be alert to the possibility of unconscious or inadvertent discrimination and mere denials of a discrimination motive, in the absence of

independent corroboration must be approached with caution.”

In respect of discriminatory dismissal on grounds of gender, it is now well establishedthat the existence of the pregnancy itself is sufficient to shift the burden of proof tothe employer to prove that the dismissal of the pregnant employee was not on groundsof pregnancy. This was made clear by the Labour Court in the case of Trailer Care Holdings Ltd v Healy EDA128. The Court stated as follows:

“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 [employer]”

In the case at hand, the Respondent treated the Complainant in a less favourable

manner, due to her gender, as specifically related to her pregnancy, by dismissing her

while she was pregnant. Taking into consideration the above-mentioned case law, it is

submitted that there is clear evidence to amount to a prima facie case of discrimination

on the ground of gender and that, in those circumstances, the burden of proof must

now shift to the Respondent to prove the contrary.

Pregnancy Related Dismissal:

The law provides robust protection to women who have been dismissed for any reason related to pregnancy, in accordance with its obligations under EU law. In the case of O’Brien v Persian Properties t/a O’Callaghan Hotels [2012] ELR 211, the Equality

Officer relied on the decisions of the European Court of Justice in Dekker, Webb and

Brown in confirming that pregnancy is a “special protected period”, and pointed out

that the Labour Court had found that only the “most exceptional circumstances not

connected with the condition of pregnancy allow a woman to be dismissed while

pregnant.”

What is clear is that the Irish Courts have shown a strong willingness to adhere to therules of EU law, with a particular emphasis on the Pregnancy Directive. Article 10 ofthe Directive requires an employer to cite “duly substantiated grounds in writing” where a pregnant worker is dismissed. In the case of Assico Assembly Ltd v Corcoran EED 033/2003, the Labour Court found that:

“Where the employee is dismissed while pregnant or on maternity leave, both legislation and 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.”

Importantly, on the facts, the Labour Court found that the Complainant had informed the employer of her pregnancy before she was dismissed. The Court was prepared to accept the evidence of the company that there were some issues with her performance, but no evidence was adduced to show that a firm decision had been taken to dismiss her on a particular day and therefore the company could not show that any exceptional circumstances arose which led to her dismissal.

Similarly, in the case of Herco Investments Ltd v O’Sullivan EED 0316/2003, the claimant advised her employer that she was pregnant and some two months later she was dismissed on purported grounds of unpunctuality. The Labour Court pointed out that the employer was not able to produce any records to show the extent of any lateness, nor was there any record of either verbal or written warnings, despite the employer claiming that she had been verbally warned on a series of occasions. The Court found in the circumstances that the burden of proof had not been discharged by the employer.

A further similar example is found in the case of Birmingham v Colour’s Hair TeamDEC-E2008-040, where the Equality Officer found that the employer had not used anysort of disciplinary procedures other than one verbal warning, prior to dismissing theComplainant. Furthermore, nothing was put in writing to the Complainant prior to dismissing her.

In the case at hand, both of the Complainant’s managers were aware of her pregnancy.

When she subsequently emailed HR in relation to maternity leave, she did so on a Friday, and did not receive any response. She emailed HR again the following Monday and received no response. The next day, on the Tuesday, she was dismissed. She was not advised of any specific reason for her dismissal other than there being some nonspecific issues with her paperwork, nor was she provided with any written reasons.

The Respondent fundamentally failed in its obligations under Article 10 of the Pregnancy Directive to provide “duly substantiated grounds in writing” to the Complainant. The matter came as a complete shock to her in circumstances where she was previously advised that she would be taking on an increased workload in due course. She was also never aware of any issues with her performance and the subject of paperwork issues was never once raised with her. It is respectfully submitted that taking the above into consideration, it is clear that the dismissal of the Complainant was on grounds related to her gender, specifically her pregnancy, and no exceptional circumstances can be

shown by the Respondent as leading to her dismissal.

LEGAL SUBMISSIONS – PAY

Section 5 of the Payment of Wages Act, 1991, deals with the regulation of deductions

made and payments received by employers. Section 5 provides as follows:

“(1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless-

(a) the deduction (or payment) is required or authorised to be made by virtue of any

statute or any instrument made under statute,

(b) the deduction (or payment) is required or authorised to be made by virtue of a term

of the employee's contract of employment included in the contract before, and in force

at the time of, the deduction or payment, or

(c) in the case of a deduction, the employee has given his prior consent in writing to

it.”

Section 6 of the Act goes on to provide as follows:

“(6) Where—

(a) the total amount of any wages that are paid on any occasion by an employer to an

employee is less than the total amount of wages that is properly payable by him to the

employee on that occasion (after making any deductions therefrom that fall to be made

and are in accordance with this Act), or

(b) none of the wages that are properly payable to an employee by an employer on any

occasion (after making any such deductions as aforesaid) are paid to the employee,

then, except in so far as the deficiency or non-payment is attributable to an error of

computation, the amount of the deficiency or non-payment shall be treated as a

deduction made by the employer from the wages of the employee on the occasion.”

The Complainant’s pay was late by a month, but she did ultimately receive her salary.

LEGAL SUBMISSIONS – WRITTEN NOTICE OF CHANGES TO THE

TERMS OF EMPLOYMENT

Section 5 of the Terms of Employment (Information) Act, 1994, states:

“5. (1) Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3, 4 or 6, the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but no later than –

(a) 1 month after the changes take effect”

Section 7 of the 1994 Act, states:

“7. -(1) An employee may present a complaint to a rights commissioner that his

or her employer has contravened section 3, 4, 5 or 6 in relation to him or her

and, if he or she does so, the commissioner shall give the parties an opportunity

to be heard by the commissioner and present to the commissioner any evidence

relevant to complaint, shall give a recommendation in writing in relation to it

and shall communicate the recommendations to the parties.”

In the case at hand, the Respondent failed to provide the Complainant with a written notice of the nature and date of the changes to her employment insofar as the location of her employment was concerned. The Complainant’s contract stated that her place of work was to be the Call Centre, but she was ultimately transferred to the Dundrum branch and she did not receive written notification of same.

RELIEF SOUGHT BY THE CLAIMANT:

In Citibank v. Ntoko EED045, it was held that an award of compensation for the effects of discrimination must be proportionate, effective and dissuasive. It is submitted that, in accordance with this principle, the Adjudicator should take into account the significant size and financial capabilities of the Respondent as well as the particularly serious level of discrimination which occurred in the Complainant’s employment with the Respondent. The Complainant seeks compensation for the effects of discrimination, perpetrated by the Respondent pursuant the Employment Equality Act, 1998 – 2015.

The Complainant seeks compensation pursuant to section 7 of the Terms of Employment (Information) Act, 1994.

In starting to come to any conclusion in this instant case I have looked at case law and believe the following will assist in making a decision in this case.

In Glanmire Residential Care Ltd v White EDA1722, at first instance, the Adjudication Officer upheld the complainant’s claim that she had been discriminated against and harassed on the grounds of pregnancy and gender and awarded her €26,320 in compensation. The Labour Court reversed this decision and dismissed the complainant’s claims. Applying the decisions in Southern Health Board v Mitchell [2001] ELR 201and Cork City Council v McCarthy EDA21 /2008, the Court found that the Complainant failed to make out a prima facie case of discrimination or harassment on the gender ground in the circumstances that arose in her place of work in March 2013. In this regard the Court cited the decision in Melbury Developments Ltd v Valpeters [2010] ELR 64 where the Labour Court stated that ‘mere speculation or assertions, unsupported by evidence cannot be elevated to a factual basis upon which an inference of discrimination can be drawn’.

It is necessary to look at the facts of this case:

The Complainant commenced employment on 4th May 2018 and after a brief induction (1 day) commenced a six week training programme with an external body.

On completion of the external training programme she returned to the Respondent’s call centre on 18th June 2018 and commenced a two week in-house training programme.

On completion of the two-week DVS training, the Complainant, and the other candidates, were required to successfully pass a call simulation. The call simulation involves a test where the Agent is required to take a call from a fake customer (typically a Team Leader) and deal with their queries as they would with a real one. This simulation poses a number of basic queries to the Agent and they are expected to follow the standard security procedures and scripting protocols that they learned in their training and apply these to the call in order to demonstrate their understanding of what is expected in the role. Failure to pass this call simulation would result in the employee being deemed unsuitable for the role and their contract terminated. The employee is offered two opportunities to pass this call simulation otherwise they are deemed unsuitable for the DVS Agent role.

The Complainant and one other male colleague failed the above-mentioned test on both occasions, after some consideration on the part of the Respondent both employees were allowed to a third attempt to pass the test. The Complainant achieved a pass mark on the third attempt.

On both the 11th and 12th of July the Complainant was spoken to regarding her non-adherence to correct call procedures. This was the cause of some concern to the Respondent as this was the specific area that she had failed the call simulation tests and had received additional training in this area.

On the 19th July 2018 Ms K, the Complainant’s line manager spoke to her in relation to her non-adherence to absence notification procedures during the six week period of the external training course.

During the month of July it became evident to Respondent management that the Complainant was struggling in her role and there were concerns about her ability to perform to the standard expected. After some consultation with the Complainant a transfer to a branch location was agreed. It should be emphasised that it was the Complainant who chose to transfer to a branch, another option was available to the Complainant, she chose the transfer.

On 18th July the Complainant transferred to a bank branch in Dundrum. From the 18th July 2018 to her dismissal on 28th August, a period of approximately six weeks the Complainant received training and attended a performance meeting on four occasions with her line manager, Mr M.

I note that during this six week period the Complainant was spoken to regarding her performance, the amount of errors that she was making and the need for the correction of these errors. She was also spoken to in relation to the procedures to be followed when absent from work and when she would be late arriving to work. She was spoken to about her use of loud and inappropriate language within earshot of customers.

The Respondent contends that the Complainant’s contract of employment was summarily terminated on the grounds that she was not performing in the call centre or branch based roles. Every opportunity was provided to the Complainant to find a suitable alternative role which she was accommodated with. The Complainant did not perform in this role.

In reaching a conclusion in this complaint I cannot disagree with the Respondent’s claim that the Complainant’s employment was not terminated because she was pregnant, it was based on her poor performance and inappropriate behaviours.

The complaint CA – 00022650 – 003 submitted under section 77 of the Employment Equality Act, 1998 is not well founded and therefore fails.

Complaint CA – 00022650 – 001 submitted under section 6 of the Payment of Wages Act, 1991 was withdrawn.

Complaint CA – 00022650 – 004 submitted under section 7 of the Terms of Employment (Information) Act,1994.

Section 5 of the Terms of Employment (Information) Act, 1994, states:

“5. (1) Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3, 4 or 6, the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but no later than –

(a)   1 month after the changes take effect”

Clause 2 of the Complainant’s contract of employment reads as follows:

‘Your usual place of work will be at the Contact Centre (location inserted). However, the Company reserves the right, and by this contract you agree, to carry out your work, either on a temporary or permanent basis, at such location as the Company may reasonably require, from time to time’.

In utilising this clause with the Complainant’s agreement I do not accept that any of the particulars contained within the contract have been changed as referred to in section 5 of the Act.

This complaint is not well founded and therefore fails

As outlined above.