Complainant

Respondent

Anonymised Parties

A customer assistant

A retail chain.

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00028643-001

21/05/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00028643-002

21/05/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00028643-003

21/05/2019

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

CA-00028643-004

21/05/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00029378-001

28/06/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00030727-001

02/09/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00030727-002

02/09/2019

The Complainant commenced employment with the Respondent on 23rd February 2019, she was employed as a Customer Assistant working between 20 to 25 hours per week at a rate of €10.65 per hour.

This complaint was received by the Workplace Relations Commission on 21st May 2019, 28th June 2019, 2nd September 2019 and 11th November 2019.

The complainant commenced employment as a customer assistant with the respondent on or about 23rd February 2019. The complainant was paid €10.56 per hour and worked on average an estimate of 25 hours per week being €264 per week. Her employment was terminated on 11th May 2019 and she was advised that she could work a further one week period until 18th May 2019 “out of respect”. The complainant is 20 years of age and is pregnant on her first child.

Terms of Employment (Information) Act 1994-2014

Section 3 Written Statement of Terms of Employment

The complainant received terms and conditions of employment dated 30th March 2019 and 4th May 2019. However, these documents did not comply with Section 3 of the Act, in particular

·       The written terms and conditions of employment do not contain particulars in accordance with Section 3 (1) (ga) which stipulates that an employee may under Section 23 of the National Minimum Wage Act 2000 request from the employer a written statement of the employee’s average hourly rate of pay for any pay reference period as provided in that section.

·       The written terms and conditions of employment do not contain particulars in accordance with Section 3 (1) (1). This section provides that written terms and conditions of employment shall provide for the period of notice which the employee is required to give and is entitled to receive to determine the contract of employment or the methods of determining such periods of notice.

·       SI 49 of 1998 Terms of Employment (Additional Information) Order 1998 provides that where under the Terms of Employment (Information) Act 1994 an employer is required to furnish written particulars of employment, it must include details of the times and duration of rest periods and breaks referred to in Section 11, 12 and 13 of the Organisation of Working Time Act 1997 that are being allowed to an employee. While particulars in relation to 15 minute and 30 minute rest breaks are provided for in the written terms and conditions of employment, there is also reference to further information being set out in the colleague handbook which the complainant did not receive.

·       SI 146 of 2000 Industrial Relations Act 1990 (Code of Practice and Grievance and Disciplinary Procedures) (Declaration) Order 2000 requires that a copy of the grievance and disciplinary procedures be furnished to an employee at the commencement of employment. It would appear from the terms and conditions of employment that these are set out in the colleague handbook. However, the complainant never received a copy of same.

·       Section 21 of the Employment Equality Act 1998 (as amended) states:

“If and so far as the terms of a contract of employment do not include (expressly or by reference to a collective agreement or otherwise) a gender equality clause, they shall be taken to include one”.

The complainant did not receive a document which set out a gender equality clause which would be required by virtue of Section 21. Nevertheless, the clause is taken to be included

·       Section 30 of the Employment Equality Act 1998 (as amended) states

“If and so far as the terms of a contract of employment do not include (expressly or by reference to a collective agreement or otherwise) a non-discriminatory equality clause; they shall be taken to include one”.

The complainant did not receive a document which set out a non-discriminatory equality clause which would be required by virtue of Section 30. Nevertheless, the clause is taken to be included.

The case of Felix Guerrero v Merchants Arch Company Limited (DWT188) highlights the importance of receiving such information under this particular piece of legislation. The Labour Court pointed out that the requirements of Section 3 are not complex matters and that simple attention to detail would enable any reasonable person to comply with its terms. The court found no merit in the argument that the breaches were of a technical nature and confirmed that the statue imposes obligations on an employer and confers a corresponding right on a worker to have the basic terms of employment set out in writing in accordance with Section 3 of the Act.

“The Court finds that the Act imposes an obligation on an employer to provide a worker with basic information regarding the terms of their employment. The requirements set out in Section 3 of the Act are not complex matters. A simple attention to detail would enable any reasonable person to comply with its terms. A failure to do so therefore requires a clear and understandable explanation as to why a worker has not been provided with such basic information about the terms under which s/he is employed”.

The decision of the Labour Court in this case is in line with the decision of the European Court of Justice in Case C-350/99 Lange v George Schuenemann GmbH where it was stated that there was an obligation to notify employees concerned of:

“All the aspects of the contract of employment relationship which are, by virtue, of their nature, essential elements”.

The respondent may seek to raise the de minimis rule in respect of this claim. However, these are employment law rights pursuant to statute and EU law and they place positive legal obligations on employers.   They are not complex rights which would cause a burden to the employer. We have set out above how the Labour Court have indicated that simple attention to detail would ensure compliance to such rights.

The complainant seeks compensation. When assessing the level of compensation to be awarded, the Adjudication Officer we submit is entitled to have regard to the following:

1. The Complainant relies on the case Von Colson and Kamann v Land Nordrhein Westfalen [1984] ECR 1891 where the ECJ made it clear that judicial redress should not only compensate for economic loss sustained but must also provide a real deterrent against future infractions.

2. The complainant also relies on the case of CD Robinson – Steele Case C-131/04 and the related case of C-257/04 where at paragraph 67 the Court stated:” However, the Member States are required to take the measures appropriate to ensure that practices incompatible with Article 7 of the Directive are not continued”.

3. The level of compensation must be persuasive of an employer going forward to be compliant with the employment law legislation.

4. At times an argument is made under the de minimus rule and in particular or without prejudiced foregoing the case of Patrick Hall complainant v Irish Water TED161 [2016] 2017 E.I.R. 61. That decision of the Labour Court is at odds with the decision of the court in the case of Felix Guerrero v Merchants Arch Company Limited DWT188.

In 2018 Case C-684/16 issued from the CJEU which confirmed that the Charter of Fundamental Rights of the European Union had direct effect in Irish Law. Article 27 of the charter provides for workers’ rights to information and consultation.

Case 378/17 being a decision of the CJEU concerning the Minister for Justice, the Workplace Relations Commission and Ronald Boyle and others confirmed that where necessary, it is necessary to set aside Irish legislation.

The directive and in particular the case of C-350/99 referred to previously in Lange-George Schuenemann GmbH specified that there is a requirement to set out all the aspects of the contract of employment relationship which are, by virtue of their nature, essential elements. The directive sets out a non-inclusive list. The Oireachtas has set out an extensive list.   We are submitting that the de minimus rule cannot apply as it is a piece of common law juris prudence.   When it comes to interpreting European Legislation.

In addition, the Hall and Irish Water case involved a Senior Executive. We are not saying that a Senior Executive is not entitled to the same information, but this is a case which involved a Senior Executive.

An argument is sometimes raised that the employee could have simply requested additional information.   The directive and the act are specific as to what information must be furnished. There is no requirement on the employee to request it. It must be provided.

A further argument is sometimes raised as to the time limit to bring a claim being limited to effectively eight months after the employment commences. There have been conflicting decisions from the WRC on this issue. We would however refer to the case of Merchants Arch Restaurant Company Limited referred to previously. In that case, compensation was awarded. The employee commenced employment on 27th March 2014. The claim was lodged on 1st June 2016. The employer was fully represented. The Labour Court in that situation provided compensation of three weeks. It is, we would contend a continuing breach.

It is sometimes argued by employers that the breach is minor or technical. This again was an argument which was raised in the case of Merchants Arch Restaurant Company Limited.   The court in that case noted

“The respondent admits the breaches of the act but argues that they are technical in nature and had no adverse impact on the complaint”.

The court went on to state:

“In the case the court finds that the respondent infringed Section 3 of the Act on a number of respects. It is also sought to minimise its actions by describing them as technical breaches rather than acknowledging its failure and undertaking to correct them with immediate effect. Instead it did not do so until the matters came before an Adjudication Officer which put the complainant to considerable expense and inconvenience in a manner for which the respondent offered no considered explanation for its failures”.

In this case the court further noted that the respondent had amended all of its contracts of employment bringing them into compliance with the Act. The court did mention that no evidence of such corrected contracts was open to the court. In this case of Merchants Arch Restaurant Company Limited the court made an award of three weeks remuneration.

Contending that the argument that breaches are minimal or technical have no standing. That an employer can, before matters come to the WRC admit the matters and rectify same and where this has not happened unless they can show that they have put in amending contracts in place for all their other employees then in those circumstances we would contend that an award of four weeks is reasonable.

An argument has been made in other cases that failure to provide information in respect of Section 21 of the Employment Equality Act 1998 as amended and Section 30 of that Act as amended, have little merit as these provisions are deemed to be implied into contracts of employment. We would refer to the case of Lange case C-350/99 as previously referred to. That case involved a claim to be advised of the requirement to work overtime. In that case the CJU held in favour of the employee. In Irish law, there is no implied condition to work overtime or any right of an employer to require an employee to work overtime unless it is specifically set out in a contract of employment. Where the Oireachtas has determined that sections of acts as regards information to be provided to employees are to be implied into contracts of employment we are contending that they are essential elements which are required to be provided under the directive and further under Article 27.   We are contending that these are fundamental matters which must be provided and are covered by Case C378/17 referred to previously and that in interpreting claim under the Terms of Employment (Information) Act the WRC or the Labour Court must have regard to the directive and apply the directive and to require all essential elements of a contract to be inserted.

By virtue of Case C-684/16 Art 47 of the Charter of Fundamental Rights of the European Union page 266A, Case C-378/17, Case C-14/83 and the case of Von Colson and Kamann, it is submitted that either our client has an entitlement to legal aid and the Court sets aside Irish legislation which excludes / denies same, or in the alternative, in applying the Von Colson and Kamann principles, which apply to all rights under a Directive or regulation to set out in addition to the award, which must be proportionate and dissuasive, the element of costs incurred by the employee. It may be argued that nobody requires a solicitor. However, Art 47 refers to the possibility of being advised, defended and represented. We therefore submit our client is either entitled to legal aid or have the costs of being represented dealt with under any award as otherwise we submit the legal fees may subsume any award and minimise the employee’s compensation.   There is an issue as to whether this requires to go to the High Court or to the CJEU as a referral as to whether the charter which has direct effect here is one where consideration has to be made for providing legal aid and whether following case C-684/16 and the CJEU decisions in Minister for Justice, the Workplace Relations Commission and Ronald Boyle and others case C-378/17 it is necessary to display Irish Law as regards the availability of legal aid.

Minimum Notice and Terms of Employment Act 1973 Section 4

Pursuant to Section 4 (1) (a) of the Minimum Notice and Terms of Employment Act 1973 the complainant was entitled to 1 weeks’ notice of termination of the employment. The complainant did not receive 1 weeks’ notice period or payment in lieu of same when the employment was terminated on 11th May 2019. The complainant is seeking to be paid for 1 weeks’ notice. This amounts to €264.00 gross.

Section 23 Compensation on cesser of Employment: Organisation of Working Time Act 1997

The complainant did not receive her annual leave entitlement when dismissed on 11th May 2019.   She is claiming for her annual leave to the date of her dismissal on 11th May 2019. By Notice for Particulars dated 21st May 2019 and Data Access Request to the respondent dated 21st May 2019 the complainant requested copies of her working time records to particularise this claim further. Working time records have not yet been received.

Employment Equality Act

The complainant was discriminated against by reason of her gender and family status in being dismissed by her employer while pregnant. The background to the dismissal is set out below.

23rd February 2019 - The complainant commenced employment with the respondent.

End of February 2019 / Early March 2019 - The complainant informed her store manager that she was pregnant.

4th May 2019 - The complainant met with a team leader, K. She was given a second employment contract which she signed and dated. She also advised that she would have paid maternity leave and a job to return to after maternity leave.

9th May 2019 - One day sickness due to pregnancy.

10th May 2019 - The complainant telephoned her store manager, M, and informed her that she would be back for her shift on that date and that she felt a lot better. The store manager advised her that she is obliged to telephone 24 hours in advance of the shift and not to come in on this date as the shift had already been covered. The complainant was never informed of such a policy.

11th May 2019 - The complainant returned to work. She noticed that she had no hours beside her name on the roster for the week ahead. Her store manager, M, and another manager, R, advised her that she was being let go because she had been out sick. The complainant offered a doctor’s note but same was refused. She was advised that they were going to let her work for an extra week out of respect.

12th May 2019 - The complainant worked her last shift on this date. She was subsequently certified as unfit for work. The complainant requested a letter setting out the particulars as to why she was let go so that she could receive her social welfare entitlements.

13th May 2019 -  The complainant telephoned HR to inform them of what had happened. A message was taken, and she was advised that they would revert to her. They did not.

14th May 2019 - The complainant telephoned HR again. She advised that she needed to deal with her own manager and was transferred to customer service.

15th May 2019 - The complainant enquired further about the letter. She was advised that there was no letter left for her and to contact them tomorrow.

The complainant was discriminated against by reason of her gender and family status in being dismissed from her employment when pregnant. The Employment Equality Acts very specifically prohibit such unlawful behaviour.

Section 6 (1) (a) states:

“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.”

Section 6 (2) (a) and Section 6 (2) (c) states

“As between any 2 persons, the discriminatory grounds (and the description 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 “gender ground”)

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

In addition, Section 6 2 A states:

“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 less favourably than another employee is, has been or would be treated”.

Furthermore Section 21 of the Employment Equality Act 1998 (as amended) states:

“If and so far as the terms of a contract of employment do not include (expressly or by reference to a collective agreement or otherwise) a gender equality clause, they shall be taken to include one”.

The complainant did not receive a document which set out a gender equality clause which would be required by virtue of Section 21. Nevertheless, the clause is taken to be included.

Lastly, Section 30 of the Employment Equality Act 1998 (as amended) states:

“If and so far as the terms of a contract of employment do not include (expressly or by reference to a collective agreement or otherwise) a non-discriminatory equality clause, they shall be taken to include one”.

The complainant did not receive a document which set out a non-discriminatory equality clause which would be required by virtue of Section 30. Nevertheless, the cause is taken to be included.

The protection of pregnant women from such discrimination in the workplace is well settled authority in both Irish and European law. In the case of O’Brien v Persian Properties t/a O’Callaghan Hotels DEC-E2012-010 [2012] ELR 211, the Equality Officer stated that pregnancy is “a special protected period “and the Labour Court had found that only in “the most exceptional circumstances not connected with the condition of pregnancy could a woman be dismissed while pregnant”. This is in keeping with Council Directive 92/85/EEC Pregnancy Directive [1992] OJ L348/2 which requires an employer to cite “duly substantial grounds in writing” where a pregnant worker is dismissed. This was never afforded to the complainant, despite repeated requests.

The robust approach to the protection of pregnant workers from discrimination by way of pregnancy related dismissal is exemplified in the case law. In the case of Assico Assembly v Corcoran EED 033/2003, the Labour Court held:

“where an 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”.

Even where arguments justifying the dismissal have been forward by employers, the Labour Court has taken a very strict view as can be seen in the case of Lee t/a Peking House v Fox ED/01/53 where the Labour Court did not accept the argument that the complainant was dismissed due to performance related issues.

While it is well established that the existence of pregnancy itself is sufficient to shift the burden of proof to the employer to prove that the dismissal of a pregnant employee was not on the grounds of pregnancy, the complainant has established that she is covered by the protected gender and family status ground.   She is relying on the case Ntoko v Citibank [2004] 15 ELR 116 for the use of hypothetical comparator. The complainant submits that she was discriminated against by reason of her gender and family status in being dismissed while pregnant. The complainant was very clearly established a set of facts from which discrimination can be inferred and, accordingly, she has discharged her burden of proof pursuant to Section 85A of the Employment Equality Acts. The complainant relies on the Labour Court decisions of Hallinan v Moy Valley Resources DEC-S-025 and Cork County Council v McCarthy EDA0821 in this regard.

In the Hallinan case the Labour Court set out that a complainant meeting the burden of proof must establish:

         I.            that he or she is covered by the protected ground.

       II.            establish the specific treatment has allegedly taken place and

     III.            that the treatment was less favourable than was or would be afforded to a person not covered by the relevant discriminatory ground.

In the case of Cork County Council, the Labour Court held that the complainant must be able to establish the primary facts upon which he or she relies but also that they are of sufficient significance to raise an inference of discrimination.

The complainant has discharged her burden of proof. This is now a matter of rebuttal for the respondent to establish and prove non-discriminatory reasons for the dismissal of the complainant while she was pregnant. It is submitted that any rebuttal evidence requires a degree of cogency as per the Labour Court determination in Portroe Stevedores v Nevins [2005] E.L.R. 282. The Labour Court have stated in the case of Trailer Care Holdings Limited v Healy EDA 128 that:

“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]”.

The complainant seeks redress in compensation for the unfavourable treatment she received.   The Employment Equality Acts provide for compensation up to a maximum amount equivalent to two years remuneration of €40,000, whichever is the greater. When assessing compensation in the matter, the Adjudication Officer is invited to consider the following points:

1. Protection against Future Infractions

a) The complainant relies on the case of Von Colson and Kamann v Land Nordrhein-Westfalen [1984] ECR 1891 where the ECJ made it clear that judicial redress should not only compensate for economic loss sustained but must also provide a real deterrent against future infractions.

b) The complainant also relies on the case of CD Robinson – Steele Case C-131/04 and the related case of C-257/04 where at paragraph 67 the Court stated: “However, the Member States are required to take the measures appropriate to ensure that practices incompatible with Article 7 of the Directive are not continued”.

c) The level of compensation must be persuasive of an employer going forward to be compliant with the employment law legislation.

2. Case Law

a) Pregnancy related dismissal case law demonstrates that where employers are found to have dismissed a pregnant employee, they will be dealt with severely by the law.

b) In the case of O’Brien v Persian Properties t/a O’Callaghan Hotels DEC-E2012-010 the complainant was awarded €315,000.00 for a pregnancy related dismissal. This award was intended to be an effective, proportionate and dissuasive remedy and was structured to be proportionate to the complaint’s salary and to dissuade the respondent and other employers from unlawful discrimination.

c) In the case of Lee t/a Peking House v Fox ED/01/53, the Labour Court awarded the complainant €25,000.00 for a pregnancy related dismissal and it is understood that a large part of this award was made by way of punitive damages to penalise the respondent in this case.

d) In Gacekv Pagewell Concessions (Ilac) Limited t/a Euro 50 Store DEC-2015-29 a pregnant employee made complaints of discrimination on the grounds of race, conditions of employment, promotion and training as well as complaints of victimisation and being mocked when attempting to plan her maternity leave, being required to work long hours and being advised to take her ante natal classes outside of working hours which culminated in her resigning her position.   The Equality Tribunal awarded €33,000.00 for the harassment, conditions of employment and promotion and a further € 22,000.00 in compensation for distress caused by the constructive victimisatory dismissal.

3. Danger to Mother and Baby

a) The complainant’s dismissal has weighed on her.   She is 20 years of age and expecting her first baby. She felt embarrassed by being dismissed from her employment.   She has worried and been anxious and stressed about not having an income for the duration of the pregnancy and for when her baby is born. She is obliged to attend her GP following panic attacks as she was concerned that the stress and anxiety was harming her baby.

b) The European Court of Justice has frequently acknowledged the dangers which termination of employment cause to both mother and baby and this is reflected in the case of Danosa [2011] 2 CMLR 45.   The ECJ stated:

“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”.

4. Legal Costs/Legal Aid

By virtue of Case C-684/16, Art 47 of the Charter of Fundamental Rights of the European Union Page 266A, Case C-378/17 and Case C-14/83 Von Colson and Kamann, we submit that either our client has an entitlement to legal aid and the court sets aside Irish legislation which excludes/denies same. In the alternative in applying the Von Colson and Kamann principles which apply not just to Equality cases but all rights under a Directive or regulation, to set out in addition to the award which must be proportionate and dissuasive, the element of costs incurred by the employee. It may be argued that nobody requires a solicitor. However, Art 47 refers to the possibility of being advised, defended and represented. We therefore submit that the complainant is entitled to either legal aid or to have the costs of being represented dealt with under any award. Otherwise, the legal fees may subsume any award and minimise the employees compensation.

Second submission.

The legal representative for the Complainant made a second submission on the morning of the hearing, this is summarised as follows:

Following on from the submission from the Respondent employer.

While the respondent has referred to the Contract of Employment the respondent has not produced the employer’s Staff Handbook. The employer has not set out particulars as to the disciplinary procedures. Regardless of this the provisions of SI No. 146/2000 being the Industrial Relations Act 1990 (Code of Practice on Grievance & Disciplinary Procedures) (Declaration) Order 2000 would apply and in particular Clause 3 thereof.   Clause 3.3 sets out

“All members of management, including supervisory personnel and all employee representatives should be fully aware of such procedures and adhere to their terms”.

That clause also provides that disciplinary procedures should be in writing and presented in a format and a language that is easily understood and a copy of the procedures should be given to all employees.

Burden of Proof

In Clause 3.6 the employer has contended that the burden of proof is on the employee.

The issue as to the relevant law on the burden of proof was dealt with in some detail by the Adjudication Officer in a case of a Director of Marketing and Telecom An Electrical Communication Company ADJ-00019756. In addition, Bolger & Kimber in Employment Equality Law was quoted stating:

“The case law on the burden of proof in cases of alleged pregnancy dismissal has developed in a singular manner due to the particular provisions of the Equal Treatment and Pregnancy Directive. It is now established that the existence of pregnancy itself is sufficient to shift the burden of proof to the employer to prove that a dismissal of a pregnant employee was not on grounds of the pregnancy.   (ref to the Trailer Care Holding Case EDA 128). In other words, the rules of the burden of proof have been moulded in a manner to take specific account of the jurisprudence of pregnancy”.

In that case the Adjudication Officer stated:

“In plain English, the burden of proof shifts to the respondent employer to prove that the alleged discriminatory dismissal/redundancy was not related in any way to the pregnancy”.

The Adjudication Officer then at para. 32 onwards set out the European Law in some detail.

In addition at Clause 3.3.1. the Adjudication Officer stated:

“Case law here, particularly where pregnancy related dismissal is being considered, is quite clear. The fact of being pregnant is sufficient grounds for a prima facie case to be made”.

We also refer to Case ADJ-000161341 where the Adjudication Officer in that case in the findings stated:

“It is clear therefore that women are to be afforded special protection from adverse treatment on account of their condition, from the commencement of their pregnancy until the end of their maternity leave. The entitlement of that protection is to be regarded as a fundamental right within the legal order of the union which the Courts and Tribunals of the union must vindicate within the limits of their jurisdiction. Where a pregnant woman is treated adversely because of her condition during this period of special protection, the employer bears the burden of proving, on cogent and credible evidence, that such treatment was in no sense whatsoever related to her pregnancy”.

We would also point out that the Labour Court in the case of Treasa Cross v Helen Ahearn EDA 195 specifically referred to Article 23 of the Charter of Fundamental Rights of the European Union and confirmed that the Charter is now incorporated in the Treaty of the European Union.

In relation to the argument in relation to a comparator, this has been covered in the previous Submission and it is not necessary for the employer to show an actual comparator as has been held by the Labour Court despite the arguments being put up by the employer.

Level of compensation

This matter is covered under the provisions of S.82(4) of the Employment Equality Act 1998, the compensation is said to be an amount of 104 times of that remuneration determined on a weekly basis. S.82(4) (a) does provide that the amount can be up to €40,000 where the complainant was in receipt of the remuneration at the date of the reference of the case but importantly adds in the words or if it was earlier, the date of dismissal.

Frivolous & Vexatious Claims.

The employer in this case has claimed that the complaint is frivolous and vexatious and we are contending if the employee wins this case that on the basis of the submission put in by the employer that claiming that the matter was frivolous and vexatious, is an issue which can be properly be taken into account in increasing the level of compensation.

This issue did arise in the case of Michael Doyle & Marie Donovan in relation to aggravated damages 2020 IEHC 11. In that case at para. 41 the case of the Supreme Court in Swaine v Commissioners of Public Works 2003 IESC 30 was quoted and set out thereafter the issue of aggravated damages and in particular we would refer to Clause 2 (c) which states:

“Conduct of the wrongdoer and/or his representative in the defence of the claim of the wronged plaintiff up to including the trial of the action”.

It went on to state:

“furthermore, the circumstances which may properly form an aggravating feature is the measurement of compensatory damages must, in many instances, be in part a recognition of the added hurt or insult to the plaintiff who has been wronged, and in part also a recognition of the cavalier and outrageous conduct of the defendant”.

In case ADJ00012100 the Adjudication Officer helpfully set out the definition of what is frivolous and vexatious. The case of Farley v Ireland and Others1997 IESC60 is one where Mr Justice Barron in the Supreme Court stated:

“So far as the legality of matters is concerned frivolous and vexatious are legal terms. They are not pejorative in the sense or possibility in the sense that Mr Farley may think they are. It is merely a question of saying that so far as the plaintiff is concerned if he has no reasonable chance of succeeding then the law says that it is frivolous to bring the case.

Similarly, it is a hardship on the defendant to have to take steps to defend something which cannot succeed and the law calls that vexatious”.

In Fay v Tegral Pipes Limited and Others2005 2IR261 the Supreme Court restated the principles where Mr Justice McCracken delivered the judgement stating:

“The real purpose of the Courts inherent jurisdiction to dismiss frivolous and vexatious claims was firstly to ensure that the Courts would be used only for the resolution for genuine disputes and not for lost causes”. And secondly that parties would not be required to defend proceedings which could not succeed”.

The Complainant’s claim of discrimination is refuted by the Respondent in its entirety and necessitates the discharge of the burden of proof that there is a prima facie case to answer by the Respondent as prescribed by section 85A of the Employment Equality Acts 1998-2015.

The Respondent also disputes the claims for Minimum Notice, Terms of Employment, Organisation of Working Time and Payment of Wages.

1.       The contract of employment sets out that “a probationary period of 13 weeks will apply from the commencement of your employment. This allows you time to familiarize yourself with your new job and it gives us time to assess your performance. If any aspect of your work is not up to standard, Management will advise you and give you time to improve…. If, however, Management considers that you are unsuited to the Company’s requirements and that your appointment will not be successful, your employment will be terminated during or at the end of your probationary period.”

2.       The Complainant received extensive training when she started working for the Respondent, (including informal and formal induction training) in line with the Company Probationary Policy.

3.       The Complainant received training on the Company Sickness Policy which includes information on absence procedures (Sickness Policy signed by Complainant) and the Company Bullying and Harassment Policy. The training associated with these policies is documented in the Complainant’s Training Record Card. Copies of all of the above were produced at the hearing.

Other training such as Stock Rotation, Food Safety & Hygiene and legal refresher training were also provided.

Background to the claim

The Complainants first day of work was spent in formal induction training with a HR Assistant, who carries out all inductions for convenience stores.   This training focused on company policies and the employee handbook, legal training (for example selling alcohol) and health & safety. The Complainant was issued a copy of the employee handbook.

The second day of work was spent with her line manager who took the Complainant on a tour of the store, explaining how the store is laid out, what is expected from staff, information on stock management and rotation and a briefing on rosters, breaks, the clocking system and the store facilities.

Four other colleagues started at around the same time as the Complainant. When a new colleague starts, they will be moved around different departments in order to see the different routines and tasks. The Complainant was initially assigned to stocking shelves. Of those new colleagues, three including the Complainant failed probation and two resigned.

Within a couple of weeks of starting work, it was observed that the Complainant was taking breaks for longer than the allocated time. The Line Manager had an informal discussion with the Complainant and explained what was expected of her and that in order to be fair, everyone had to have the same breaks. The Complainant said that she accepted this coaching however the Complainant continued to “flex” her rest breaks. The Complainant also made staff purchases while clocked in despite continued informal coaching from her managers. Her managers also observed her regularly trying to engage colleagues in chats when they should be working, and she was also on the phone. Every time a manager discussed issues with her, she agreed to change but then continued with the unacceptable behaviour and so her managers reminded her on a number of occasions that she was on a 13-week probation period and was putting her employment at risk.

On several occasions the Line Manager noticed that the Complainant was sitting on a foot stool while carrying out her duties. He also noticed the Complainant kicking stock along the floor and putting her foot up on the shelf. He took the Complainant to one side and explained to her that this was not what “good looks like” and that foot stools are a tool used to help pack shelves. He further explained that by kicking stock with her foot that stock could become damaged and this would cause waste and that there was no need to put her feet on a shelf at any time, this creates the wrong impression for customers. The Complainant was also warned that she was not packing the shelves correctly and in line with the manual handling training she had received at her induction.   Again, the Complainant accepted the coaching, agreed to change her actions but unfortunately, did not.

The Line Manager wrote a note to file for himself on 14 March 2019 that he had spoken to the Complainant on several occasions about her talking on the shop floor and to focus more on her daily tasks.

In the last week of March 2019, the Complainant notified the Store Manager, that she was pregnant. The Store Manager spoke to her about the Respondent process and took her through the maternity policy. On 2 April 2019 a detailed formal Risk Assessment was carried out during which no issues were raised by the Complainant. The Complainant brought her team leader, with her to this Risk Assessment meeting where the Store Manager went through the maternity policy and gave her a copy of the policy. The Complainant said that she wanted to stay on the floor in the grocery department and that she had no issues performing the role including standing and replenishing stock. The Store Manager discussed with her that if the work becomes harder, they will move her to the front-end duties (i.e. register / customer service) but the Complainant refused and said she wanted to stay in the grocery department.

Sometime after the Complainant told the Store Manager of her pregnancy, she informed her Line Manager of her pregnancy. Almost immediately afterwards, the Complainant went to pick up raw chicken which had spilled on the floor without following the correct procedures for dealing with raw chicken (i.e. she did not put on gloves). The Line Manager was extremely alarmed and immediately went to stop her picking it up, explaining that it was particularly dangerous for her and reminded her that she had been trained on this issue.

On 10 April 2019 a performance review was conducted by a Team Lead, with the Complainant. The form used to structure this meeting was signed by the Complainant.

Performance reviews are assessed using a traffic light system as “Red” “Amber” or “Green” so that colleagues can readily understand their standing. The first page of the form allows a colleague to assess their own performance and the second page documents the subsequent conversation with the Team Leader. In her own review, the Complainant acknowledged that she needed to improve her timekeeping and attendance, that she could improve how she works with colleagues in her department and that the way she dressed for work was inconsistent. The Complainant commented that “I will work on my time keeping / attendance and stop chatting to distract colleagues”. The team leader warned the Complainant that her overall performance was “Amber” and that she needed to address issues of attendance, clocking in and out, punctuality, break management, lateness, talking and distracting colleagues, attitude, standard of work, and to follow dress code. The Team Leader clearly warned the Complainant that she was in danger of failing her probation. The form indicated that there would be a follow up meeting in May. Again, the Complainant accepted the coaching and promised to improve.

Unfortunately, there was no improvement in the Complainants performance and considering that she was pregnant and, in an effort, to support her performance, the decision was made to move the Complainant to the checkouts as had been discussed with her earlier and as is normal for pregnant colleagues.

On 22 April 2019, her first day on checkouts, the Duty Team Leader, spent two hours training the Complainant particularly on the “one story” standards expected from a check out operator including that there should be a smile and welcome for every customer, offer help if required with packing, offering the colleague a community fund token and inviting the customer to take part in a customer survey.

The Complainant’s performance on the check-outs was unsatisfactory as she continued talking to neighbouring operators during transactions and generally failed to follow the routines required. Her performance did not improve despite many coaching conversations with management.

Furthermore, despite being warned about unacceptable levels of absenteeism, the Complainant continued to have absences for which no medical certificates were provided. As the Complainant was over the review level for absence, her Team Leader held a “supporting your attendance” meeting with the Complainant when she returned to work on 11 May. At this point the Complainant was retrained on the notification requirements. The Complainant had two previous “supporting your attendance” meetings in March and April when she was under the absence review level where the absence notification process had been reviewed with the Complainant.

On 11 May 2019, the Store Manager, told the Complainant that she would be having her probation review meeting later that day. The Complainant was offered staff / union representation which she declined. At this meeting, the Complainant was informed that she was unsuited to the Respondent’s requirements and that the appointment was not successful and therefore employment was not confirmed. The Complainant was reminded that several conversations had taken place regarding her overall performance and the required improvement that was expected. The Complainant acknowledged this. Whilst there was no obligation to do so, the Complainant was given 1 weeks’ notice to finish up on 17 May 2019. This was one week prior to the official probation period ending and as allowed for under her contract of employment.

The Complainant did not report for work as scheduled during her notice period and did not give notice of her absence as required by the procedures on which she had been recently retrained. On 15 May 2019 the Complainant arrived into the store, requesting a letter of termination from the Duty Team Leader who said that she would get one for her but would have to wait for the Store Manager, as she was the only person in the store permitted to issue such a letter. The Duty Team Leader asked if the Complainant was coming back to work and she said no, she was not well and had a certificate from her doctor. This medical certificate was dated 13 May 2019 (after her employment was terminated) and certified the Complainants absence for 1 week.

Claim under Employment Equality Acts 1998-2015: CA-28643-004

The Complainant is alleging that she has been discriminated on the grounds of gender and family status. The Employment Equality Acts, 1998 to 2015 define the term ‘gender’, ‘family status’ and what is meant by the term ‘discrimination’.

Section 6 (1) of the Employment Equality Acts 1998 to 2015 states:

4.       Section 6(2) of the Employment Equality Acts 1998 to 2011 states that

5.       “As between any two persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are 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”),

6.       In addition, Section 6(2)(A) states: “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 less favourably than another employee is, has been or would be treated,”.

It is submitted that the Complainant did not have a ‘family status’ as per the definition in section 6(2) of the Act at the time of her dismissal and therefore, the Respondent could not have discriminated against her on that ground.

Preliminary Issue - Burden of Proof:

It has been the well-established practice of Adjudication Officers and the Labour Court to require a Complainant to present, in the first instance, facts from which it can be inferred that she was treated less favourably than another person is, has been, or would be treated, on the basis of the discriminatory ground cited.  The Respondent submits that it is only when the Complainant has discharged this burden to the satisfaction of an Adjudication Officer that the burden shifts to the Company to rebut the inference of discrimination raised.  

In Teresa Mitchell v Southern Health Board (DEE011) the evidential burden which must be discharged by the Complainant before a prima facie case of discrimination can be said to have been established was outlined by the Labour Court as follows: "The Complainant must "establish facts" from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a Complainant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if those primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the Respondent to prove that there was no infringement of the principle of equal treatment. Applied to the present case, this approach means that the appellant must first prove as fact one or more of the assertions on which his complaint of discrimination is based. A prima facie case of discrimination can only arise if the appellant succeeds in discharging that evidential burden.”

In Margetts v Graham Anthony & Company Limited, EDA038, the evidential burden which must be discharged by the Complainant before a prima facie case of discrimination can be said to have been established was further outlined by the Labour Court.  The Labour Court stated as follows: “The mere fact that the complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.” 

In Valpeters v Melbury Developments Ltd (EDA0917) (Appendix 17) the Labour Court further considered the issue of the burden of proof for cases concerning discrimination.  The Court said that “Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit.  This requires that the complainant must first establish facts from which discrimination may be inferred. What those facts 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 significant 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. Section 85A places the burden of establishing the primary facts fairly and squarely on the complainant and the language of this provision admits no exceptions to that evidential rule. In this case it was submitted that the Complainant was treated badly by the Respondent and the Court was invited to infer that he was so treated because of his race. Such an inference could only be drawn if there was evidence of some weight from which it could be concluded that persons of a different race or nationality were or would be treated more favourably. All that has been proffered in support of that contention is a mere assertion unsupported by any evidence.” In that case, the Complainants Solicitor went on to argue that the respondent in the case should be required to prove that others were treated in the same way as the Complainant as the respondent alone had access to the relevant information.  The Court said that “Knowledge of how the Complainant's fellow workers were treated is not exclusively or almost exclusively within the knowledge of the Respondent. Nor could it be said that it is peculiarly within the range of Respondent’s capacity of proof. It is also plainly within the knowledge of those other workers. The Complainant could have sought to ascertain from those workers if they were treated as sub-contractors or as employees. If necessary, those workers could have been required to attend at the hearing and testify as to how they were treated”.   In the absence of evidence, the Labour Court refused to infer that the complainant was treated badly on grounds of his nationality. Mere assertions of such treatment, without the support of any evidence, cannot shift the burden of proof or provide a footing on which discrimination could be inferred. 

7.       Further case law which considers the burden of establishing a prima facie case of discrimination by the Complainant before the Respondent has a case to answer is the case of Cork City Council v Kieran McCarthy, Determination No. EDA0821, where it is stated that the language used within section 85A “indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference or presumption contended for can properly be drawn from those facts.”

In Mulcahy v Minister for Justice and Waterford Leadership Partnership Ltd HC O Sullivan J, 26 October 2001, the High Court considered the onus of proof in pregnancy related dismissals for the purposes of the Employment Equality Act 1997. In that case, the High Court accepted that mere pregnancy was not sufficient to shift the onus of proof, rather something objective and independent of the pregnancy is required. This High Court authority post-dated the cases of Webb, Brown and Dekker.

The Respondent submits that it is only when the Complainant has discharged this burden to the satisfaction of an Adjudication Officer that the burden shifts to the Respondent to rebut the inference of discrimination raised. The Respondent submits that the Complainant has failed to discharge this burden of proof and, consequently, the claim cannot succeed.

Preliminary Issue – Comparator:

Without prejudice to our argument that the burden of proof has not been met by the Complainant, the Respondent submits that the Complainant has failed to prove or provide any evidence that she has been treated any less favourably than another person is, has been or would be treated in a comparable situation. Furthermore, the Complainant has failed to even identify a comparator to whom she was treated less favourably than on the grounds cited by her as required under section 6 (1) (a) of the Acts which defines discrimination as – 6 (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’)

Section 6(2) of the Acts clearly set out that discrimination is defined as occurring where “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”. That comparator must be someone who is of a different gender and/or family status.

The Complainant has failed to cite any comparators within the Respondent company against whom it could be established that she has been treated less favourably. In the case Toker Developments Limited and Edgars Grods (Determination No EDA105) (Appendix 20) on the issue of hypothetical comparator the Labour Court stated: It is settled law that in cases of equal treatment a hypothetical comparator can be relied upon but only where there is some evidential basis upon which it could be concluded that such a comparator would have been treated more favourably in the circumstances of the particular case. No such evidence was adduced and it would clearly be impermissible for the Court to reach conclusions of fact based upon merely supposition or speculation.

No evidence exists to support a complaint of discrimination vis-à-vis a hypothetical or actual comparator. Therefore, the Complainant has failed to establish any discrimination as defined by the Act.

It is appropriate that the Complainantbe obliged to specify suitable comparator(s). In the case of Melbury Developments Limited v Valpeters EDA 0917 previously mentioned, the Court further determined: “...Solicitor for the Complainant has pointed to the difficulty for the Complainant in obtaining evidence concerning how others were treated. He submitted that in these circumstances the Respondent should be required to prove that others were treated similarly to the Complainant. In the Court’s view such an approach would amount to placing the entire probative burden on the Respondent. That would involve an impermissible departure from the plain language and clear import of Section 85A of the Act and the Community law provision upon which it is based.   […] the Court cannot accept that the peculiar knowledge principle can avail the Complainant so as to relieve him of the obligation to prove the primary facts upon which he relies in accordance with Section 85A of the Act.”

8.       On a point of information, the below referenced colleagues were also employed in the another store (one male, one female and neither pregnant) and both were unsuccessful in their probation. The management of these two probations in store was similar to the Complainants.

·       Employee A (male) 22 September 2018 to 7 November 2018

·       Employee B (female) 1 March 2019 to 6 April 2019

Elements of an Equality Claim:

Direct discrimination is defined as occurring where one person is treated less favourably then another is, has been or would be treated and that person is of a different race, gender, marital status, family status, sexual orientation, religious belief, age, disability or membership of the traveling community. Direct discrimination consists of two elements. The first is the less favourable treatment of the individual making the complaint; the second is the existence of discriminatory grounds for that treatment. Both elements must be satisfied for a claim of discrimination to succeed.

The Complainant has not clearly identified another person who in comparison she can argue she had been treated less favourably than or would be treated. Thus, the Complainant has provided no evidence of that she has been treated less favourably than another person of a different gender or family status is, has been or would be treated. Secondly, the Complainant has also failed to establish a causal link between any alleged discriminatory treatment and her cited grounds. The logic of the Court in the above cited Melbury Development case should be applied in this case and the Complainant should be obliged to provide comparator(s) and evidence of the alleged act of discrimination to demonstrate that she was treated less favourably than a person of a different gender or family status.

Indirect discrimination is deemed to occur where an apparently neutral provision, puts persons at a particular disadvantage compared with other employees based on one of the nine grounds covered by the Acts. There is no evidence to show that the Complainant has been indirectly discriminated against.

Dual Claim - It would appear that the Complainant alleges discrimination under family status and gender, with each of these allegations also arising from the same set of facts. Notwithstanding the fact that at the time of her dismissal the Complainant did not have any children and therefore did not have a family status as per the Acts, the company draws the Adjudicator’s attention to A School v A Worker EDA122 , where the Court found that “as a matter of principle the Complainant cannot rely on the same facts to obtain redress under more than one head of liability under the [Employment Equality] Acts.”. Therefore, the Complainant cannot succeed in making two claims to the WRC under the Employment Equality Acts in respect of the same set of circumstances.

Discriminatory Dismissal

The Respondent completely refutes the allegation that the Complainant was dismissed because she was pregnant. It is clearly established that under the Employment Equality Acts 1998 to 2015, it is not for the Adjudication Officer or the Labour Court to determine whether the manner in which an employee has been treated is fair, but whether this treatment constitutes discrimination as defined by the Acts. In the case of Ballycotton Seafood v Kay Cronin (Determination Number 7/04) (Appendix 22), the Labour Court stated, “whilst the manner in which the complainant was treated may have been unfair and the reason for his dismissal may have implications for other legislation, she has failed to establish a prima facie case that him treatment was motivated by him nationality”.         

The Complainant alleges that the Respondent is in breach of the Employment Equality Acts, 1998 to 2015 due to termination of her employment. The Respondent submits that the Complainant was not successful in her probationary period due to performance issues and has failed to demonstrate how this constitutes a breach of the Employment Equality Acts, 1998 to 2015.

The Respondent submits that the termination of the Complainant’s contract did not constitute less favourable treatment on the grounds of gender or family status as her lack of success in securing ongoing employment with the Company was solely on the basis of performance issues. The Complainant has failed to establish any facts upon which it could be presumed that this treatment was in any way connected to her gender or family status and therefore she has failed to demonstrate that a case of discrimination exists.    

The Complainant states in her claim form to the WRC that she was discriminated against due to her pregnancy. The Respondent submits that while it does not accept that the Complainant has received unfavourable treatment, in the event that the Adjudication Officer decides that the Complainant’s termination of employment constitutes unfavourable treatment, there is no connection between the termination of the Complainant’s probationary period for poor performance and the Complainant’s pregnancy. The Complainant has failed to demonstrate any facts which could justifiably link the dismissal to her pregnancy. She has therefore failed to infer facts upon which a prima facie case of discrimination can be made.

In the case of a Client Service Executive and a Financial Services Provider (ADJ-00008846) the Adjudication Officer found that the Complainant’s dismissal was solely as a result of her failure to make the necessary improvements to her performance during her probation period and was not related “wholly or mainly due to her pregnancy”. As with the instant case, the termination of the contract of employment was solely performance related, a fact that the Complainant was more than aware of and was not related to her pregnancy.

The onus of proof is on the Complainant to show that she was discriminated against on grounds of her gender and family status. No evidence to date has been produced to substantiate these allegations. Until such proof is forthcoming the Adjudication Officer must reject this claim. As the Complainant has not established a prima facie case of discrimination the Respondent requests that the Adjudication Officer reject the Complainant’s allegation under the Employment Equality Acts 1998 to 2015.

Without prejudice to the foregoing argument, if the Adjudication Officer finds that the Complainant has discharged the evidential burden required to raise a presumption of discrimination, the Respondent submits that the Complainant has failed to demonstrate that she has been treated less favourably than another employee is, has been or would be treated in a comparable situation on the ground of gender or family status, and consequently, the claim must fail.

It is the Respondent’s position that it did not treat the Complainant less favourably than any other employee on the grounds of her gender or family status. Indeed, in the past 5 years this particular store has two employees who are currently pregnant, 4 maternity leaves were availed of following from which the employees returned to work, and one employee is on maternity leave. Indeed, the Complainant’s previous line manager who cannot be here today is currently on maternity leave.

In Donal McGrath V Public Appointments Service (Adj 00009975) the Adjudication Officer set out that in order to succeed in an equality claim, the Complainant must establish three things; “(1) That the complainant is covered by the relevant discriminatory grounds, (2) There was specific treatment by the respondent, and (3) The treatment was less favourable that treatment that was or would have been afforded to another person (the comparator) in similar circumstances. Equality Officers have held, for example in Mr Marcin Wilcocki v Alliance PLC (DEC-S2016-032) that there must be facts of ‘sufficient significance’ to raise a presumption of discrimination. It is not sufficient to simply be a member of a protected group to render acts discriminatory, if for example no comparator exists, or the acts are transparently attributable to a non-discriminatory cause”. There is no evidence in this case of a disability, of any less favourable treatment related to disability and there is no actual or notional comparator cited.

For the reasons set out in the above submission, the Respondent argues that this claim is manifestly “frivolous” or “misconceived” within the meaning of section 77A (1) of the Employment Equality Acts 1998 to 2015 and should be dismissed in accordance with the provisions of that section.

Claim under Terms of Employment (Information) Act, 1994: CA-28643-001

As set out earlier in the submission, the Complainant received not one, but two copies of her contract of employment, after she asked for an amendment to the original. Both contracts are signed by the Complainant with those signatures confirming that she had read, understood and accepted the provisions of those contracts.

Section 10 sets out information on Rest Periods and refers to the colleague to the Colleague Handbook for further information on break times.

Section 19 sets out that a grievance procedure can be found the colleague handbook.

         I.            Section 20 sets out that a disciplinary / dismissal procedure can be found the colleague handbook. The Probation Policy signed by the Complainant sets out further information on the management of discipline during probation.

         I.            Section 21 sets out that notice requirements are explained in the colleague handbook

       II.            The Complainant signed for a comprehensive Bullying and Harassment Policy on 27 March 2019.

The Employee handbook was provided to the Complainant and her contract of employment was explained at length to her. While we note that the Complainant is now denying that she received the handbook, the Store Manager and other managers involved in the Complainants employment can confirm that a copy was provided to her and time was spent explaining their terms as well as the terms of her contracts.

It is the Respondent’s position that the Complainant was provided with written confirmation of all terms and conditions of employment upon commencing employment with them.

It is therefore the Respondent’s position that it has complied fully with the Terms of Employment (Information) Act 1994 in that the Complainant was provided with written notice of the provisions of the Contract and associated employee handbook under which she was an employee of the Respondent’s, and accordingly the Complainant cannot establish a breach of the Terms of Employment (Information) Act 1994.

Claims under the Organisation of Working Time Act, 1997

According to the WRC complaint forms, the following referrals are to be considered by the Adjudication Officer:

CA-00029378-001 – June Public Holiday lodged on 28 June 2019

CA-00030727-001 – August Public Holiday lodged on 2 September 2019

CA-00030727-002 – Annual leave accrual on maternity leave lodged on 2 September

CA-00028643-003 – Annual leave entitlement on termination of employment lodged on 21 May 2019

In relation to CA-00029378-001 & CA-30727-001, the Complainant commenced employment on 23 February 2019 and her contract was terminated on 11 May with notice to 17 May 2019. The June Public holiday occurred on 3 June 2019. The August Public holiday occurred on 5 August 2019. The Complainant is also claiming entitlement for public holidays during maternity leave. The Complainants employment clearly ended before “the week ending of the day before a public holiday” the Complainant does not have any entitlement to payment for public holidays as per her claim under the Organisation of Working Time Act, 1997.

In relation to CA-00030727-002, the Complainant commenced employment on 23 February 2019 and her contract was terminated on 11 May with notice to 17 May 2019. She accrued annual leave during that period and was paid it upon termination of her contract, in line with the provisions of the Organisation of Working Time Act, 1997. The Complainant does not have any entitlement to the accrual of annual leave during her maternity leave as she was not employed by the Respondent during this time.

In relation to CA-00028643-003, the Complainant’s final payslip issued 25 May 2019 was presented at hearing and includes payment for annual leave accrued to that point of €250.24, the Complainant not having availed of any annual leave during her employment. This is in accordance with Section 23 of the Organisation of Working Time Act, 1997.

Claim under Minimum Notice and Terms of Employment: CA-28643-002

The Complainant had worked for the Respondent for less than 13 weeks and therefore had no statutory entitlement to minimum notice.

The Respondent did however give the Complainant one weeks’ notice of termination; but the Complainant did not attend work during her notice.

The Complainant’s contract of employment states at Section 12 that sick pay is only paid to colleagues who have successfully completed their probationary period. As the Complainant was on certified sickness absence from work, albeit that she did not follow the appropriate reporting procedures, there is no contractual entitlement to pay during her notice period.

The exclusion of probationary colleagues from any sick pay scheme is repeated in the Probationary Policy signed by the Complainant.

Conclusion

The Respondent repeats its strong rebuttal of all the claims before the Adjudication Officer and ask that the matters be dismissed. The Complainant’s contact was terminated during her probationary period due to her own unacceptable performance which she was constantly reminded of and was not in any way related to her pregnancy. The Complainant has not shown any evidence to the contrary.

“The mere fact that the complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.” 

Both the Complainant and the Respondent furnished comprehensive written submissions.

The Complainant signed an employment contract on 30th March 2019, an amended contract was signed on 4th May 2019, the amendment being the inclusion of her full name. Several clauses within that contract refer to the Colleague or Staff Handbook. The Complainant contends that she was never issued with this handbook. One interesting point is that the Respondent has included, as part of their submission, copies of all documents signed by the Complainant, these include the Probationary Period Policy, Sickness Policy, Bullying and Harassment Policy. Training Record Card, Pregnancy Risk Assessment Policy and Maternity Leave Policy. What is not included is the Colleague/Staff Handbook.

The Complainant commenced employment on 23rd February 2019 and was employed to work 25 – 30 hours per week at a rate of €10.65 per hour. Training took place in the early days and the Complainant was introduced to all company policies as part of her on-boarding programme. She has signed the training record cards that this training was received and understood.

Within a couple of weeks, it was observed that the Complainant was taking breaks longer than those allocated, she was spoken to about this and despite this talk continued to flex her breaks. She was also observed making purchases during her working hours, this is not allowed and was also the subject of coaching from management. It is stated by the Respondent that the Complainant was also observed chatting to colleagues during her working hours and also using her mobile phone during working hours.

On 14th March 2019 her line manager, SK, entered a file note on her file that he had spoken to the Complainant on several occasions about chatting to colleagues and her need to be more focussed on the daily tasks of the job.

On 10th April 2019 the Complainant was invited to a performance review meeting with her team leader. During this meeting the Complainant acknowledged that she needed to improve her timekeeping and attendance, needed to improve how she works with her colleagues and also accepted her personal dress code was inconsistent. In summing up this review the Complainant has commented “I will work on my timekeeping / attendance and stop chatting to distract colleagues”

The team leader advised the Complainant that her overall performance was ‘amber’ (the respondent uses a traffic light system – red/amber/green when assessing overall employee performance).The tea leader then went onto list the areas requiring improvement: attendance, clocking in and out, punctuality, break management, talking to and distracting colleagues while working, attitude and standard of work. A further meeting was arranged for May and the Complainant promised to improve her performance.

The Complainant’s performance did not improve and considering she was pregnant a decision was made to transfer her to checkouts as had previously been discussed with her and is normal for pregnant employees.

The Complainant’s performance on checkouts was unsatisfactory as she continued to chat to colleagues and generally failed to follow routines required. Her performance did not improve despite further coaching from management.

O 11th May 2019 the store manager informed the Complainant that she would be having her probation review meeting later that day. The Complainant was offered staff / union representation, but this was declined. At the meeting the Complainant was informed that she was unsuited to the Respondent’s requirements, that the appointment was not successful and therefore employment was not confirmed. The Complainant was issued with one weeks’ notice to finish on 17th May 2019. This was one week prior to the official probationary period ending and was in line with her contract of employment.

CA-00028643-001 – complaint submitted under section 7 of the Terms of Employment (Information) Act, 1994.

The Complainant has an entitlement under law to be provided with a written statement of the main terms of her employment within two months of commencement of the employment. The statement under section 3 of the said Act must include the following:

a)      the full names of the employer and the employee,

b)      the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act, 1963 ),

c)       the place of work or, where there is no fixed or main place of work, a statement specifying that the employee is required or permitted to work at various places,

d)      the title of the job or nature of the work for which the employee is employed,

e)       the date of commencement of the employee's contract of employment,

f)        in the case of a temporary contract of employment, the expected duration thereof or, if the contract of employment is for a fixed term, the date on which the contract expires,

fa) a reference to any registered employment agreement or employment regulation            order which applies to the employee and confirmation of where the employee may obtain a copy

g)      the rate or method of calculation of the employee's remuneration,

ga) that the employee may, under section 23 of the National Minimum Wage Act,2000

       requests from the Employer, a written statement of the employee’s average hourly

     rate of pay for any pay reference period, as provided in that section.

h)      the length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval,

i)        any terms or conditions relating to hours of work (including overtime),

j)        any terms or conditions relating to paid leave (other than paid sick leave),

k)       any terms or conditions relating to—

(i)                  incapacity for work due to sickness or injury and paid sick leave, and

(ii)                pensions and pension schemes,

l)        the period of notice which the employee is required to give and entitled to receive

(whether by or under statute or under the terms of the employee’s contract of employment) to determine the employee’s contract of employment or, where this cannot be indicated when the information is given, the method for determining such periods of notice,

m)    a reference to any collective agreements which directly affect the terms and conditions of the employee’s employment including, where the employer is not a party to such agreements, particulars of the bodies or institutions by whom they were made.

In this case the Complainant was issued with a statement of the terms and conditions of employment and when read in conjunction with the employee/colleague handbook the Respondent meets all the criteria set out in the Act. This complaint is not well founded.

CA – 00028643 – 002 – complaint submitted under section 11 of the Minimum Notice & Terms of Employment Act, 1973.

The Complainant worked for the Respondent for a period less than 13 weeks and therefore had no statutory entitlement to minimum notice. The Respondent did however give the Complainant one weeks’ notice of termination, the fact she decided not to work this period was a decision she made.

This complaint was closed prior to the hearing.

CA – 00028643 – 003 – complaint submitted under section 27 of the Organisation of Working Time Act, 1997.

The Complainant’s final payslip issued 25th May 2019 was included in the submission produced at the hearing. This clearly shows that a payment of €250.24 was paid to the Complainant as accrued holiday pay. This complaint is not well founded.

CA – 00028643 – 004 – complaint submitted under section 77 of the Employment Equality Act, 1998.

In “Employment Equality Law” (Bolger Bruton and Kimber) (Round Hall 2012) section 4 – 144 includes the following:

…..” The case law of the Equality Tribunal and the Labour Court shows a strong emphasis being placed on art.10 of the Pregnancy Directive (Council Directive 92/85 Pregnancy Directive [1992] OJ L348/1), which requires an employer to cite “duly substantiated grounds in writing” where a pregnant worker is dismissed. This specific requirement has never in fact been expressly implemented in Irish law and no such requirement is referred to either in the equality or in the maternity legislation. Nevertheless, case law from the Equality Tribunal and the Labour Court illustrates that art.10 is now implied into Irish law. It is now well established that the existence of the pregnancy itself is sufficient to shift the burden of proof to the employer to prove that a dismissal of a pregnant employee was not on the grounds of pregnancy. In effect for an employer to dismiss a woman during her pregnancy, regardless of the reason for that dismissal, they must have duly substantiated reasons for the dismissal given to the employee in writing. Where an employer fails to do that, it is likely that the dismissal will be found to have been unlawful even though no such requirement exists in relation to any other dismissal outside of the pregnancy situation. For example, in the case of Assico Assembly Limited v Corcoran (EED 033/2003) the Labour Court held:

“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 inwriting”

In the instant case the Complainant had informed the Respondent of her pregnancy before she was advised that she was being dismissed. On 11th May 2019 the Complainant attended a “supporting your attendance” meeting with her team leader, at this meeting the Complainant was retrained on notification requirements. On the same day the Complainant was informed by the store manager that she would be having her probation review later that day. At this meeting the Complainant was informed that she was unsuited to the Respondent’s requirements and that the appointment was not successful and therefore employment was not confirmed.

In attending these two meetings on the same day I accept that the Respondent was not happy with her performance but can find no evidence of a firm decision had been taken to dismiss her. From this I conclude that there had been no firm decision to implement her dismissal on a specified date and therefore the Respondent had not discharged the burden on it to show that the dismissal was for exceptional reasons unconnected with the Complainant’s pregnancy.

The representative for the Respondent argued that the Complainant, in the first instance, had not presented facts from it can be inferred that she was treated less favourably that another person. As can be seen above, “It is now well established that the existence of the pregnancy itself is sufficient to shift the burden of proof to the employer…….”

The concept of exceptional circumstances was applied by the Labour Court in the case of Assico Assembly Limited v Corcoran (EED 033/2003). The Court was prepared to accept that the employer was unhappy with the Complainant’s work performance but stated that it could “find no evidence that a firm decision had been taken to dismiss her or more importantly that a particular day had been nominated for her dismissal”

It is contended by the Respondent that the dismissal was conducted in accordance with their policy, “Probationary Period”. In this policy it clearly states, “If you have been dismissed under the Probationary Policy you still have the right of appeal following the recognised appeals process”. In evidence the store manager clearly stated that no right of appeal was offered to the Complainant.

I find that the Complainant was discriminated against.

Per submission at the hearing of the complaint the Respondent has argued that the complaint is manifestly “frivolous” or “misconceived” within the meaning of section 77 of the Employment Equality Acts 1998 to 2015.

The complaint is neither “misconceived” or “frivolous”.

CA – 00029378 – 001 – complaint submitted under section 27 of the Organisation of Working Time Act, 1997.

The Complainant has contended that she was not paid for the Public Holiday in June 2019.

The Respondent clearly states:

In relation to CA-00029378-001 & CA-30727-001, the Complainant commenced employment on 23 February 2019 and her contract was terminated on 11 May with notice to 17 May 2019. The June Public holiday occurred on 3 June 2019. The August Public holiday occurred on 5 August 2019. The Complainant is also claiming entitlement for public holidays during maternity leave. The Complainants employment clearly ended before “the week ending of the day before a public holiday” the Complainant does not have any entitlement to payment for public holidays as per her claim under the Organisation of Working Time Act, 1997.

This complaint is not well founded and therefore fails.

CA – 00030727 – 001 – complaint submitted under section 27 of the Organisation of Working Time Act, 1997.

This would appear to be the same complaint as CA – 00029378 – 001 - please see above.

CA – 00030727 – 002 – complaint submitted under section 27 of the Organisation of Working Time Act, 1997.

The Respondent has said the Complainant commenced employment on 23 February 2019 and her contract was terminated on 11 May with notice to 17 May 2019. She accrued annual leave during that period and was paid it upon termination of her contract, in line with the provisions of the Organisation of Working Time Act, 1997. The Complainant does not have any entitlement to the accrual of annual leave during her maternity leave as she was not employed by the Respondent during this time.

In coming to a decision, I have accepted the Respondent’s argument and decided this complaint is not well founded.

CA – 00028643 – 004 – complaint submitted under section 77 of the Employment Equality Act, 1998.

I have found that the Complainant was discriminated against and for the effects of this discrimination I order the Respondent to pay compensation to the Complainant of €15,229.50 (15 months’ pay calculated on working 22 hours per week)

This award of compensation should be made within 42 days from the date of this decision.

All other complaints are deemed to be not well founded.

Employment Equality Act;