Complainant

Respondent

Parties

Paulina  Knapczyk

Aveo Foods Ltd

Representatives

Stewart Reddin Liberties Citizens Information Service

Hugh Hegarty Management Support Services (Ireland) Ltd

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00033402-001

23/12/2019

The Complainant commenced employment as a full-time Packing Assistant with the Respondent, a food-processing company, on 7th February 2019. Her average working week was between 36 and 40 hours and her initial rate of pay was €10 per hour. Her average weekly wage was €400.

This complaint was received by the Workplace Relations Commission on 23rd December 2019.

The remote hearing of this complaint was held on Tuesday 6th April 2021.

Background

1.         The Complainant commenced employment as a full-time Packing Assistant with the Respondent, a food-processing company, on 7th February 2019. Her average working week was between 36 and 40 hours and her initial rate of pay was €10 per hour. Her average weekly wage was €400.

2.         The Complainant was provided with a written statement of her terms and conditions of employment. Her employment was subject to successful completion of a six-month probationary period.

3.         Her main duties were packing prepared meals into plastic trays for use as airline meals.

4.         There were some initial issues regarding her attendance and she missed some days in the early months of her employment due to family issues and being evicted from her flat. However, no formal warnings were issued by the Respondent in relation to same and she was subsequently promoted to the role of Team Leader and given a pay rise.

Complainant’s Case

The Complainant submits that she was a hard-working employee and showed initiative on the production line. She regularly received praise from her supervisor, and as a consequence of her diligent work she was promoted to the role of Team Leader in late May 2019. Consequently, her hourly rate of pay was increased to €11 per hour, effective from 27 May 2019.

The Complainant was happy with her new role and believed it was recognition of her hard work and competency.

In early June 2019 the Complainant realised she was pregnant. She did not wish to inform her employer of the pregnancy until 12 weeks had passed.

The Complainant states that during the early stages of her pregnancy she experienced a lot of morning sickness and had to use the toilet frequently during her morning work shifts.

The Complainant further states that the smell of food on the production line made her nauseous. Each time she used the toilet she had to inform her supervisor. The Complainant also gave up smoking and stopped joining her colleagues, including her supervisor, for a cigarette at lunchtime.

Given the above changes in the Complainant’s behavior and routine, the Complainant states that her supervisor approached the Complainant one lunchtime and asked if she was pregnant. The Complainant states that she confirmed she was and that the supervisor gave a surprised look but said nothing further about it.

On 20 June the Complainant was certified by her GP as unfit to work from 21 June to 27 June due to lower abdominal pain. The Complainant emailed her supervisor a copy of the medical cert.

The Complainant received an email from the Office Manager, stating that the medical certificate should have been sent to her and not her supervisor.

The Complainant returned to work on Friday 28 June and worked a full week the following week.

On Wednesday 10 July the Complainant was summoned to a meeting with the Office Manager without notice. She was not informed in advance of the purpose of the meeting. In attendance at this meeting on behalf of the Respondent employer was the Office Manager and one other person. The Complainant was not accompanied by a representative or a witness.

The Office Manager immediately informed the Complainant that she had failed to successfully complete her six-month probationary period and was summarily dismissed. She was not informed why her probationary period had been deemed unsuccessful. A note of that meeting taken by the Office Manager is included in the supporting documents.

At this meeting the Complainant informed the Office Manager that she was pregnant. The Office Manager claimed that this was the first that she heard of it and that the dismissal was nothing to do with her pregnancy.

The Complainant was ordered to hand over her locker key and swipe card and was escorted from the building by the other person present at the meeting.

She received formal written notice of her dismissal some weeks later. The original letter was sent to her previous address.

The dismissal letter, dated 10 July 2019, did not offer any specific reasons for the Complainant’s dismissal. It simply stated that her probationary period was due to end on or before 07 August 2019 and after ‘careful operational review’ her employment ceased with effect from 10 July 2019.

The Complainant received one week’s pay in lieu of notice.

When she returned home that day the Complainant emailed the Office Manager seeking an explanation for her dismissal and reporting that both her colleagues on the production line and her supervisor were aware of her pregnancy. In response the Office Manager stated that that she would provide detailed reasons for her dismissal. The subsequent dismissal letter contained no such detail.

 The Law

Section 6 (2A) of the Employment Equality Act 1998 is 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.

Article 10 of the Pregnancy Directive provides that “pregnant workers cannot be dismissed during the period from the beginning of their pregnancy to the end of maternity leave, save in exceptional circumstances not connected to their condition which are permitted under national legislation and/or practice. If a worker is dismissed during that period, the employer must cite duly substantiated grounds for her dismissal in writing.”

As per the Employment Equality Acts, there is no length of service requirement; employees are entitled to this protection from the first day of their employment. Once it is shown that the employer knew of the pregnancy the burden of proof shifts to the employer to show, on the balance of probabilities, that there has been no discrimination.

In Mitchell v Southern Health Board (DEE 011) the Labour Court held that for a case to be made out:

The first requirement is that the claimant 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 claimant must prove, on the balance of probabilities, the primary facts on which they rely on seeking to raise a presumption of a lawful discrimination. It is only if these 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 is no infringement of the principle of equal treatment.

In considering whether a prima facie case of discrimination was made, the Labour Court, in A Director of Marketing v A Telecom and Electronic Communications Infrastructure Support Company (ADJ 00019756), determined that, “The fact of being pregnant is sufficient grounds for a prima facie case to be made.” The burden of proof then shifted to the employer to establish, in this case the redundancy, was not related to the pregnancy.

The Labour Court has held in a number of key decisions that no employee can be dismissed while pregnant unless there are exceptional circumstances unconnected with the pregnancy and those exceptional circumstances are notified to the employee in writing.

In Corcoran v Assico Assembly Ltd (EED033 / 2003) the Labour Court found that the case law of the European Court of Justice and Directive 92/85 requires an employer to set out “duly substantiated grounds in writing” where a pregnant employee is dismissed. It held 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.

In such cases where a dismissal has taken place during the protected period the burden of proof is on the employer to demonstrate that the dismissal was not related to the pregnancy. This point was strongly made in the Labour Court ruling of Healy v Trailer CareHoldings Ltd (EDA128) where it was held that “where a pregnant woman is dismissed during this period of special protection the employer bears the burden of proving on cogent and credible evidence that the dismissal was in no sense whatsoever related to the pregnancy.”

In Bermingham v Colour’s Hair Team (DEC-E-2008-040) the Equality Tribunal, in considering a pregnancy related dismissal claim, pointed to the fact that the employee had been issued with only one verbal warning during the course of her employment, was not provided with an opportunity to respond to accusations made by her employer prior to her dismissal and was given no opportunity to rectify her behaviour. In those circumstances the Equality Officer found that the employer had failed to demonstrate that there were exceptional circumstances not associated with the employee’s pregnancy for her dismissal.

In Dymnicka v Kylemore Foods Group Ltd (UD/1003/2007) the Employment Appeals Tribunal (EAT) considered whether the employee was dismissed wholly or mainly because of her pregnancy. The onus was on the employer to demonstrate that their decision to dismiss the employee was fair and the employee’s pregnancy was not relevant. The EAT found that the respondent had failed to satisfy the tribunal that the pregnancy was not a relevant factor, nor did it demonstrate that the dismissal was reasonable and fair. It further noted, “Of significance is the fact that the applicant had clearly been an excellent and hard-working employee. She had even been singled out for a ‘special recognition award’ during the course of her employment.”

As per part 4 (1) of SI 146/2000 – Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures):

The essential elements of any procedure for dealing with grievance and disciplinary issues are that they be rational and fair, that the basis for disciplinary action is clear, that the range of penalties that can be imposed is well defined and that an internal appeal mechanism is available. As per Part 4 (6) The procedures for dealing with such issues reflecting the varying circumstances of enterprises/organisations must comply with the general principles of natural justice and fair procedures.

In A Pharmacy Technician v A Pharmacy (ADJ – 00010127) the Adjudicator emphasised the right of the Complainant, a probationary employee dismissed while pregnant, to fair procedures:

In addition, the Complainant has an implied contractual right of fair procedures. If it was the case that the dismissal was performance related then the Respondent should have gone through an engagement process with her well before her probationary period was due to expire outlining was required of her, what improvements were expected and identifiable objectives she needed to achieve. He should have outlined what assistance he would provide to her in helping her to achieve those objectives and even considered extending the probationary period with the with the consent of the Complainant. There was no evidence that any of this process was undertaken by the Respondent.

In reference to the absence of documentary evidence attesting to a pregnancy, in Chef’s Assistant v A Restaurant (ADJ – 00010127) the Adjudication Officer accepted that the employee had informed her line manager of her pregnancy and found in favour of the complainant:

I note that the complainant did not inform her employer of the pregnancy in writing. Her evidence was that she mentioned it to her line manager, who, the complaint surmises, informed the owner in turn…In assessing the evidence, I note that the complainant had worked for the respondent without any performance issues or questions about her qualification. I accept that she told her line manager of her pregnancy and continued to work without issue. I am satisfied that the respondent became aware of the complainant’s pregnancy. It is striking that the complainant’s hours were reduced to zero, without any review of her qualifications or capability to do the role. There was no paperwork regarding the need for certain qualifications and no assessment of what skills the complainant had or did not have. Instead, the complainant was dismissed. The intervening event between the complainant working without issue and her subsequent loss of hours is her pregnancy. I find as fact that the complainant’s dismissal resulted wholly or mainly from her pregnancy.

In A Director of Marketing v A Telecom and Electronic Communications Infrastructure Support Company (as previously referenced ADJ- 00019756), the Respondent employer contested that it was not aware of the Complainant’s pregnancy prior to a decision being made to make her position in the company redundant.  The Complainant contested that while the formal notification [of her pregnancy] was made on 1st November 2018 - at this stage she was 20 weeks pregnant and clearly “showing”. She contended that when discussions of redundancies were being made during October 2018 her obvious ‘bump’ must have been observed by the decision makers.

Having weighed the balance of probabilities, derived from the key facts, the Adjudicator came to the view that “the Respondent had not sufficiently established that there was no link to the Complainant’s pregnancy in her inclusion on the 18 staff exit list…The burden of proof from both Ireland and Europe is that in a pregnancy discrimination situation a very detailed case must be made to the Complainant to justify an ending of employment.” Consequently, “the legal position is clear cut and accordingly the case for discrimination on pregnancy grounds must stand.”

Application of the Law

The key facts of this case have been set out and the following are the most salient points which give rise to the relevant legal issues.

·       The Complainant commenced employment with the Respondent Employer on 07 February 2019.

·       Given her hard work and competency in her role the Complainant was promoted to the position of Team Leader in late May 2019 and received a pay rise effective from 27 May.

·       In early June the Complainant became aware of her pregnancy.

·       Following obvious changes to her patterns of behaviour at work, including regular requests to her supervisor for permission to use the toilet, feelings of nausea and absence from her usual cigarette breaks, she informed her supervisor, that she was pregnant.

·       From 21 June to 27 June the Complainant was absent from work for one week with pregnancy-related illness.

·       Ten days after her return to work the Respondent terminated the Complainant’s contract of employment without notice and without providing a written explanation for the termination.

·       This case therefore concerns a claim taken by the Complainant in accordance with the Employment Equality Acts 1998-2015.

·       The Complainant submits that she was discriminated against by the Respondent employer on grounds of gender and the manner of the termination of her employment constituted a discriminatory dismissal contrary to the Employment Equality Acts.

·       The Complainant submits that the Respondent employer was aware of her pregnancy, that there were no ‘exceptional grounds’ justifying the termination and that the Respondent failed to provide a detailed written explanation for the termination of her employment.

·       Given the Complainant was promoted to the role of Team Leader in late May 2019 it was clear that she was a valued member of staff and considered to be very competent in her role.

·       From the time of her promotion in late May 2019 to her dismissal in early July there were no issues raised by the Respondent employer in relation to the standard of her work. At no stage was the Complainant made aware that her employment might be at risk.

·       Following a data subject access request to the Respondent in respect of the Complainant’s employment record, there is no written record in respect of a review of her work performance and no indication that the Respondent employer was dissatisfied with the Complainant’s standard of work.

·       There is reference to two alleged hygiene breaches in July 2019.

·       The first relates to the Complainant having a yoghurt in her locker. The Complainant explains that she had it there as she was experiencing a lot of morning sickness at the time. She states that she left a yoghurt in the locker in the event she was sick and needed to eat something small afterwards. She states that the kitchen was in another building and it would mean additional time off the production line to go there. This, she says, would have resulted in a reprimand from her Supervisor.

·       The second alleged breach relates to the Complainant drinking water from a plastic container. According to the Complainant this was common practice amongst staff on the production line and that the Supervisors were aware of the practice. She states it was never raised as an issue with her or other staff prior to this incident in July 2019.

·       It should be noted that neither of the alleged hygiene breaches resulted in disciplinary action being taken against the Complainant, nor a warning being issued to her.

·       It is further noted that these alleged breaches were not referenced in her dismissal meeting with the Office Manager on 10 July 2019 or in the letter terminating her employment.

·       There is no record in the employee file indicating a review of the Complainant’s standard of work or suitability to the role.

·       The Complainant’s six-month period of probation was due to expire on 07 August 2019.

·       She returned to work from sick leave on 28 June 2019 and was summarily dismissed without notice on 10 July. She was not given an opportunity to defend her employment record, instead she was escorted from the building.

·       Given the above, it is submitted that on the balance of probabilities the only connection that can be made between the Complainant’s dismissal and the undue haste in which the employer dismissed her, despite the fact she had been promoted six weeks earlier, was the fact of the Complainant’s pregnancy.

·       It is submitted therefore that the Complainant was (i) discriminated against by the Respondent on grounds of gender in terms of section 6 (2) of the Employment Equality Acts 1998-2015, and contrary to section 8 of the Acts; (ii) dismissed by the Respondent in circumstances amounting to discrimination on grounds of gender in terms of section 6 (20 of the Employment Equality Acts 1998-2015 and contrary to section 8 of those Acts.

·       It is well established in case law that an award of compensation for the effects of discrimination must be proportionate, effective and dissuasive. See CJ case of Von Colson & Kamann v Land Nordrhein-Westfalen Fox v Lee t/a Peking House and A Director of Marketing v A Telecom and Electronic Communications Infrastructure Support Company (referenced above).

The respondent operates a premium quality ready-meals Company. The Respondent has been operating for many years and has a reputation within the industry as one of the leading and highest quality ready meal providers in Ireland and Europe. The main stem of the business supplies, a diverse customer base, and their clients include major airlines, universities, supermarkets, and local shops chains. Therefore, in addition to the high food safety standards required by the food service and hygiene legislation, the respondent operates to a significantly higher quality and hygiene standard to meet customer requirements and ensure their reputation within the industry, remains exemplary and untarnished.

The claimant’s employment with the company began on or about the 7th February 2019, she was employed as a Packing assistant on a permanent, full time basis, subject to the satisfactory completion of a six-month probationary period. 

At the time of the claimant’s employment she was furnished with a copy of her terms and conditions of employment, and a copy of the respondent’s employee handbook. Both the letter of Appointment which outlines the terms and conditions of employment and the Company Handbook state quite clearly that the full-time permanent position is contingent on the completion of a probationary period.

The claimant had been working for the respondent for a number of months and had during this period had been spoken to a number of times in relation to policies and procedures, especially in relation to hygiene related procedures. The Latest of the issues with the claimant arose on the 9th July, when the technical manager had to speak to the claimant in regard to standard hygiene procedures.

On or about the 10th July 2019 the claimant was called into the offices of the Office Manager. Present at the meeting were the claimant, the Office Manager and another person. In the meeting the claimant was advised that she had unfortunately not passed the probationary period, and that she would receive 1 week’s payment in lieu of notice, and today would be her last day. The claimant was issued a letter to the same effect.

At the close of the meeting the claimant, stated to the Office Manager that she was pregnant. The Office Manager repliedthe types of redress  that she/ the company was unaware of the pregnancy.

The Matter was referred to the Workplace Relations Commission on 23rd December 2019

LEGAL POSITION

Employment Equality Act

The claim under the Employment Equality Act is that the claimant has been discriminated against by the respondent on the grounds of Gender; specifically, the claimant is alleging discriminatory treatment in relation to her pregnancy claiming that she was discriminatorily dismissed form her employment.

Burden of Proof

1.       Section 85A (1) of the Acts provides as follows:

“(1) where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary”.

In order to demonstrate that the Claimant has received less favourable treatment and that the less favourable treatment arose from her age, gender, civil status, religion and/or race, the Claimant must first establish a prima facie case of discrimination. Prima facie evidence has been held in the Labour Court in the Rotunda Hospital v Gleeson [DDE003/2000] to be:

“Evidence which in the absence of any contradictory evidence by the employer would lead any reasonable person to conclude that discrimination has probably occurred.”

The Respondent notes that this requires that a claimant has to not only establish the primary facts upon which he or she will seek to rely but also that those facts are of sufficient significance to raise an inference of discrimination. In Cork City Council v McCarthy EDA21/2008, the Labour Court recommended that:

“The type or range of facts which may be relied upon by a complainant may vary significantly from case to case.   The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference of presumption contended for can properly be drawn from those facts.   This entails a consideration of the range of conclusions which may appropriately be drawn to explain in particular fact or a set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts”.

In Melbury Developments Ltd v Valpeters [2010] ELR 64 the Labour Court warned that “mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”.

The Complainant’s complaint document sets out an allegation that the claimant’s supervisor and all her colleagues, (which is denied), however the claimant to date has not provide any evidence beyond her assertions that she was in fact pregnant at the time her probationary period was over and the decision was made not to continue her employment.

Section 85A of the Act places the burden of proof onto the complainant to firstly show a prima facie case of discrimination, and if that prima facia case is shown, then the burden of proof then shifts on to the respondent to prove that there was no discrimination. It is the submission of the respondent that to date the claimant has provided no evidence, to support her assertion that she was at the time covered by one of the protected grounds, or any evidence that the respondent was in any way aware of this. Therefore, there can be no prima facia case established as it is our position that the claimant has failed to meet the burden of proof required under the Employment Equality Acts.

Discriminatory Dismissal

The relevant legislation in relation to the claim before the Adjudicator is Section 6 of the Employment Equality Act which states:

“For the purposes of this Act, discrimination shall be taken to occur where, on any grounds in subsection (2) (this act referred to as the discriminatory grounds”), one person is treated less favourably than another is, has been or would be treated

(1)    As between any two persons, the discriminatory ground (and the descriptions of those grounds for the purposes of this Act) are-

(a)    That one is a woman and the other is a man (in this Act referred to as “the gender ground”)

Further section 6(2A) 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, contrary to any statutory requirement, less favourably than another employee is, has been or would be treated.

What is set out above is that where an employee has been discriminated against on the ground of pregnancy, that is to say has been treated less favourably because she was pregnant it will be deemed to have occurred on the ground of gender.

The Act sets out that in order for discrimination to have occurred there must be a causal relationship between the discriminatory ground, in this case the gender or pregnancy, and the less favourable treatment, namely the dismissal.

The only evidence proffered by the claimant in the complaint form is that her supervisor, in early June asked the claimant if she was pregnant, to which the claimant responded affirmatively. The supervisor however has entirely denied that any such conversation took place, and absolutely denies any knowledge that the claimant was pregnant at any time prior to her dismissal.

In addition, in late June 2019 the claimant was absent from work for a week, and upon her return produced a sick note that stated the claimant was suffering from abdominal pain. This doctor’s cert did not mention the pregnancy in anyway at all. The claimant at no time made the respondent aware until after her employment was terminated.

Upon commencement of employment the claimant signed terms and conditions of employment. Those terms and conditions specifically state that “This Letter in conjunction with your Employee Handbook confirms your employment with our company and sets out the main terms and conditions of employment with Aveo Foods Limited incorporating the requirement of the Terms of Employment (information) Act 1994-2001.” In addition, the claimant signed an acknowledgement that she had received, read, and understood the Employee handbook and agreed to be bound by it.

The respondent’s Employee Handbook outlines to employees, that “as soon as an employee is aware that they are pregnant they must notify the Company immediately in order that the company can carry out a Pregnancy risk assessment to ensure that your work will not put your pregnancy at risk.”  Again, the only assertion put forward by the complainant is that her supervisor was aware. A claim to which the supervisor, has fully denied.

The Respondent has in place a robust policy to ensure pregnant employees are kept away from the production line. For the reason that it is a known risk that exposure to vibration during the first three months of pregnancy can cause damage to the foetus.

While it accepted that a negative cannot be proven, the claimant had she informed her supervisor, would have informed the Manager who would have instigated the risk assessment immediately. There is no risk assessment, for the claimant, as the procedure was never triggered, because the claimant never informed the Respondent until after she was dismissed.

It is the contention of the respondent that without fore knowledge of the pregnancy, there cannot be a cause and effect relationship between the claimant’s dismissal, and the protected ground of pregnancy under the Employment Equality Acts. The is the cause and effect relation that is required in order for the discrimination to have had occurred is absent in the present case.

CONCLUSION

 As set out by the Labour Court in Southern Health Board v Mitchell [2001] E.L.R. 201 cited above it is for the Complainant to establish facts from which it may be presumed that the principle of equal treatment has not been applied to them.  The fact of the matter in the present case are that there are no facts that the claimant has given that would create a presumption that discrimination of any type occurred.

The claimant asserts that her supervisor asked her if she was pregnant, to which she responded in the affirmative; Further, she states that all of her colleagues knew that she was pregnant. Yet at no time did she, as she puts it “formally inform the company” as she wanted to wait “until she had confirmation from her GP” as she thought this would provide protection.

The claimant then claims to have attended her GP to confirm her pregnancy in Mid-June; however, despite her “fear”, and her belief that the confirmation of the pregnancy would provide her protection, she does not get a certificate in mid-June at the time of the ultra sound. The claimant doesn’t obtain the doctors confirmation of pregnancy when she was experiencing Abdominal Pain. The claimant makes no attempt to inform the company, and “protect herself despite her assertion that she felt this formal certification would protect her Job.

Finally, the claimant has alleged a lack of fair procedures in relation to her dismissal. At the time the claimant was employed she was placed on a probationary period for 6 months. This was clearly outlined to her in the letter of appointment, which referred the claimant to the Employee Hand book.

The handbook clearly states that all appoints are on a six months probationary period, which will be extended to account for absence. The Claimant missed 12 days and therefore her probationary period was set to expire on the 19th July 2019. As it was clearly stated in the employee handbook, which as previously mentioned is incorporated into the terms and conditions, the employment of the claimant could be terminated at the absolute discretion of the company. The claimant agreed to this, was aware of this and we say should be bound by it. The discretion of the company was exercised and in exercising that discretion made the decision that after the trial period the claimant was not a good enough employee to continue her employment.

Both representatives presented very comprehensive submissions to the hearing and both have cited a number of decisions for consideration in reaching a decision in the instant case.

One decision not mentioned was Wrights of Howth Seafood Bars Ltd v Murat (EDA 1728). In this case the Respondent appealed the decision of the Adjudication Officer upholding the complainant’s claim that she had been discriminated against on the grounds of gender as she was pregnant, and the award of €30,000 in her favour. The Labour Court upheld the Complainant’s claims. The Respondent argued that the complainant had been dismissed because of her incompetence and not because she was pregnant. The Labour Court found that the complainant (who had been on probation when she was dismissed) was not provided with adequate training when she began to work with the respondent as a manager. It further found that, prior to notifying the respondent of her pregnancy, no performance issues had been brought to her attention. Furthermore, the decision to dismiss and the manner of its implementation were found by the Court to have been seriously lacking in adherence to its own disciplinary procedures, as outlined in the Complainants conditions of employment. Indeed, the Court also noted that contrary article 10 of Directive 92/85/EEC (Directive 92/85/EEC on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding) no substantial grounds for the dismissal were provided by the Respondent in writing. However, the Court reduced the amount of compensation awarded to the Complainant to €15,000 and varied the decision of the Adjudication Officer accordingly.

In the instant case the only written notification received by the Complainant during her probationary period was one notifying her of a 10% increase in wages.

During the hearing it was stated at point 32 of the Respondent’ s submission “The handbook clearly states that all appoints are on a six months probationary period, which will be extended to account for absence. The Claimant missed 12 days and therefore her probationary period was set to expire on the 19th July 2019. As it was clearly stated in the employee handbook, which as previously mentioned is incorporated into the terms and conditions, the employment of the claimant could be terminated at the absolute discretion of the company. The claimant agreed to this, was aware of this and we say should be bound by it. The discretion of the company was exercised and in exercising that discretion made the decision that after the trial period the claimant was not a good enough employee to continue her employment”.

In the case of Grant Thornton v A worker (LCR 21543) (heard under the Industrial Relations Acts 1946 – 2015) the Respondent stated that under her contract of employment, the complainant agreed that that the respondent had the right to terminate her employment in the circumstances. It also asserted that that she was ‘provided with timely feedback throughout her probation’.

The Labour Court found that the Respondent failed to adhere to the requirements of the Code of Practice on Grievance and Disciplinary Procedures made under s.42 of the Industrial Relations Act 1990, before the decision to dismiss the claimant was taken. In coming to that conclusion the Court had regard to the following:

·       While the claimant was invited to attend a probation meeting on 12th May 2017 the decision to dismiss had been taken prior to the meeting.

·       The claimant was not advised in advance that the purpose of the meeting was to effect her dismissal.

·       The claimant was not afforded an opportunity to be accompanied at the meeting.

·       No appeal procedure was available to the claimant in respect of the decision to dismiss her.

The Court was also critical of the following:

The claimant’s contract of employment purported to provide that normal disciplinary procedures do not apply during the probationary period. However, this Court has consistently held that an employer is not relieved of the obligation to act fairly during a probationary period and that the requirement of the Code of Practice applies in all circumstances in which a worker is on hazard of having his or her employment terminated.

In making a decision in the instant case I conclude that the dismissal was due to the fact that the Complainant was pregnant and that the process followed by the Respondent was severely flawed. I therefore find that the complaint as presented is well found.

As per section 82 of the Employment Equality Act the types of redress that may be ordered may be one or more of the following;

82(1)(c) an order for compensation for the effects of acts of discrimination or victimisation which occurred not earlier than 6 years before the date of the referral of the case under section 77.

82(1)(e) an order that a person or person specified in the order take a course of action which is so specified.

I now order the Respondent to pay compensation of €10,000 to the Complainant.

I also order the Respondent to re-write the section of the employee handbook regarding the probationary period of employment to reflect compliance with S.I. 144 of 2000. Within the time frame of 3 months the Respondent should provide me with a copy of this.

Payment of compensation ordered should be made within 42 days from the date of this decision.

As outlined above.

Employment Equality Act, 1998.