FULL RECOMMENDATION
SECTION 83 (1), EMPLOYMENT EQUALITY ACTS, 1998 TO 2015 PARTIES : PERMANENT TSB PUBLIC LIMITED COMPANY (REPRESENTED BY TIERNAN LOWEY B.L.) - AND - MS SUSIE O'DWYER (REPRESENTED BY CAROLINE DOYLE B.L., INSTRUCTED BY ORMONDE SOLICITORS) DIVISION :
SUBJECT: 1.Appeal of Adjudication Officer Decision No: ADJ-00017555 CA-00022650-003. This is an appeal by Susan O’ Dwyer (Complainant) against decision ADJ-00017555 of an Adjudication Officer in her complaint against her employer Permanent TSB PLC (Respondent). The complaint of discrimination on the grounds of gender and pregnancy was made pursuant to the Employment Equality Acts 1998-2015 (the Acts). The Adjudication Officer found that the complaint was not well founded. Background The Complainant commenced employment with the Respondent on 4th May 2018 as a Digital Voice and Sales (DVS) Agent on a salary of €24,000. The Complainant was part of a cohort of ‘Fast-Track’ candidates. It is the Complainant’s case that shortly after she commenced work, she discovered she was pregnant, and she informed the Respondent. It is her submission that her employment was ended because of her pregnancy. The Respondent denies that there was any link between the termination of her employment and her pregnancy. It is the Respondent’s submission that the Complainant did not successfully complete her probation as there were on going difficulties with her performance. The Complaint lodged her complaint with the WRC on the 16th October 2018. Summary of the Respondent’s submission The Complainant was one of ten candidates who has successfully applied to participate in the Institute of Banking (IOB) fast track programme. Following a six-week intensive programme the Complainant passed two out of the three exams she was required to sit. However, she indicated her intention to re-sit the exam in January 2019. Following the exams, the Complainant along with the other candidates returned to the DVS team where they underwent a further two weeks training in dealing with customers and selling products over the phone. This training involved following call compliance procedures and following scripted dialogues such as asking security questions. At the end of the two-week period the participants have to successfully pass a call simulation test. Participants are normally given two attempts to pass the call simulation. The Complainant was unsuccessful in her first two attempts on the 29th June 2018. Along with one other person the Complainant was offered additional training and a third and final attempt at the call simulation. The Complainant was successful in her third attempt on the 2nd July 2018. On the 11th July Mr Alan Dwyer Learning and Development SME with the Respondent met with the Complainant to discuss the fact that on the previous day she had not followed the Out Bound call structure in some of her calls and reminded her that it had to be completed on every call even if the call only lasted two minutes. On the 12th July a further check showed that the Complainant was still not following the correct protocol. A further meeting was held with her where the importance of following the procedure was emphasised and she was advised that if she continued to fail to follow the correct script on calls it would lead to disciplinary action and the termination of her contract. In and around this time Ms Kinsella who was the Complainants Team Leader met with the Complainant to discuss the fact that she had not followed the procedure for notifying absences when she was on the training course. A further meeting was held between the Complainant, Mr Hutchinson her line manager and Ms Kinsella to discuss the fact that there were still concerns with her performance and that it was unlikely based on her performance that she would pass her probation. At the meeting Mr Hutchinson set out two options for the Complainant 1) she could continue in her current role but that she would have to show significant improvement or 2) she could seek a Customer Service Advisor role within the branch network as her skillset might be more suited to that role. The Complainant was asked to consider the two options over the weekend. Shortly after the meeting the Complainant confirmed to Mr Hutchinson that she wanted to move to the branch network. The Complainant was given the option of three branches and she opted to go to the Dundrum branch. On the 18th July 2018 the Complainant moved to the Dundrum branch where she reported to Mr Andrew Murphy. It was Ms Kinsella’s evidence to the Court that at the meeting to discuss the Complainant’s absence the Complainant informed her that she was 16 weeks pregnant. It was her evidence that she congratulated the Complainant. Ms Kinsella was unsure of when that conversation took place, but she believed it was after the meeting on the 12th July 2018 which she attended with Mr Dwyer. It was her evidence that at the meeting on the 12th July 2018, she advised the Complainant that if she continued to fail to follow the call script her employment could be terminated. It was Ms Kinsella’s evidence that the Complainant advised that she found it difficult to follow the script. Ms Kinsella informed the Court that when the Complainant indicated that she wanted to go to the Dundrum she contacted Mr Murphy and spoke to him about the Complainant, the issues she was having, but that she thought she would be a good fit for the branch. The next witness for the Respondent was Mr Andrew Murphy Team Leader in the Dundrum branch. It was Mr Murphy’s evidence that when the Complainant started in Dundrum, he had a conversation with her and that while there was not any formal training, she would have been shadowing an experienced member of staff for about a week. It was his evidence that it became clear very early on that the Complainant did not get the seriousness of the customer service role and the absolute requirement to follow procedure. It was Mr Murphy’s evidence that following advice from HR he had a meeting on the 30th July 2018 with the Complainant where he set out the objective for the next week and discussed with her the correct procedure for the notifying the branch of sick leave. Following the meeting he set out what they had discussed in an email to the Complainant. The Complainant had some absences between the 30th July and the 14th of August and that was why there was no meeting on the 7th August 2018. He wanted to ensure that she had five working days to work on the objectives set out. It was Mr Murphy’s evidence that he spoke with the Complainant on the 14th August and that he advised her that her performance objectives were not being met. It was his evidence that the fact that she was on probation was raised. Mr Murphy informed the Court that he set out objectives for the rest of that week to the 17th August 2018. He followed up their discussion by setting out in an email what the objectives were. The next meeting was the 21st August 2018. It was Mr Murphy’s evidence to the Court that at the meeting he had informed her that her performance had not improved from the previous week and that she had not complied with the policy of notifying the branch if she was going to be late. It was his evidence that he also had to raise an issue with her about using bad language in the workplace. Mr Murphy informed the Court that he advised the Complainant that she was still on probation and that she was not performing to the standards required. He advised the Complainant that over the next week he would be giving strong consideration to whether or not she was suitable to pass probation and continue in her role with the Permanent TSB. He also told her that she was at risk of her contract being terminated. It was Mr Murphy’s evidence that after the meeting he sent the Complainant an email setting out what he had told her at the meeting and advising her that if she required further training or assistance, she should not hesitate to ask for same. It was Mr Murphy’s evidence that between the 21st and the 28th August 2018 the performance issues were not addressed nor were the behavioural issues that he had discussed with her. To the best of his knowledge, she had not sought assistance during that period. On the 28th August 2018 Mr Murphy called the Complainant into his office where he advised her that she had not passed her probation and that her employment was being terminated with immediate effect. He confirmed that she would be paid one week’s pay in lieu of notice. It was put to Mr Murphy under cross examination that the Complainant had not been informed in advance that the purpose of the meeting was to dismiss her, that she had not been given the opportunity to be accompanied nor had she been provided with a letter of dismissal. Mr Murphy informed the Court that as the Complainant was on probation, he did not believe that he had to follow the normal procedure for dismissal. It was his evidence that it would be a matter for HR to issue a letter of dismissal, he just completed a leaver’s form and submitted same to HR. In response to a question from the Court Mr Murphy’s evidence was that the Complainant had never raised her pregnancy as a reason for her underperformance. The final witness for the Respondent was Mr David Smith who at the time was the Senior HR Business Partner for the retail banking division. Mr Smith confirmed to the Court that he was aware that the Complainant was going to be given the option of a transfer to the branch network. Mr Smith’s evidence was that he provided HR support to Mr Murphy and that it was standard practise that full disciplinary process would not apply to a person on probation. He accepted that the Code of Practise on Grievances and Disciplinary Procedures S.I. No 146 of 2000 was not applied. Mr Smith’s evidence was that the Respondent pays 18 weeks maternity leave as standard and that they regularly have staff on probation going on maternity leave. In respect of the process leading to dismissal He spoke to Mr Murphy and told him to set up weekly meetings and to set out the performance issues and the consequences of failure to improve on the performance issues. It was his evidence that the email of the 21st August 2018 reflected the conversation he had with Mr Murphy. Mr Smith submitted that he believed the email of the 21st August set out the basis for the dismissal and that it was an oversight from HR that a dismissal letter did not issue. In response to a question from the Court he confirmed that the email of the 21st August was the first time that the potential for dismissal had been put in writing, but it was his understanding it had been relayed to her verbally at earlier meetings. It was the Respondent’s submission that there had been a seamless pattern of performance issues from the commencement to the termination of her employment. Efforts were made by the Respondent to assist her but to no avail. It was the Respondent’s submission that the Complainant was fully aware that she was being dismissed for performance reasons. The Respondent drew the Court’s attention to their written legal submission and the caselaw contained therein. In particular they wanted to address the issues of the requirement of Article 10 (2) of Directive 92/85 that there must be duly substantiated grounds for the dismissal in writing. The Respondent sought to rely on the judgment of the Court of Justice in Case C-103/16 Porras Guisado v Bankia SA.[2018] IRLR 563 at paragraph 53 where the Court held “ Thus the employer must inform a pregnant worker whom he is preparing to dismiss or has already dismissed, in writing of the reasons not related to that worker for making collective redundancies” It was their submission that this supports their contention that the setting out of the substantiated reasons in writing does not have to happen at time of dismissal it can happen in preparation for dismissal The Respondent also sought to distinguish this case from the case of Wrights of Howth Seafood Bars Limited and Dorota Murat EDA1728 in that the decision to dismiss was solely linked to her performance which was addressed with her on an ongoing basis and that she was on notice that her employment was in danger of being terminated. Summary of the Complainant’s submission During the Complainant’s employment with the Respondent, she was never the subject of any disciplinary complaint, investigation, finding or sanction. In fact, her work was praised by the Manager who ultimately dismissed her. The Complainant discovered she was pregnant in early June and advised Ms Kinsella of same in early July 2018. Ms Kinsella raised an issue with the Complainant in respect of her absence during the training course. The Complainant informed Ms Kinsella that she had been unable to get through to the number she had been provided with. Soon after that meeting, she was offered a transfer to Dundrum and she accepted same. The duties in the branch were different to what she was used to. It is the Complainant’s submission that she received some basic training, but she was left to fend for herself and had to seek out assistance from other members of staff. The Complainant was surprised by the content of the meeting on the 21st August 2018 and the follow up email as two days previously she had been praised for her work. During the month of August, she was instructed to let HR know when she was taking maternity leave and she had advised them that she intended commencing maternity leave in November 2018. On the 28th August 2018 she came into work as normal and was asked by Mr Murphy if he could speak with her. He then advised her that she was not going to make her probation because her paperwork was not up to standard. She was in complete shock at the news and she told Mr Murphy that she had not received adequate training. The dismissal meeting lasted only a few minutes in total and she was told to leave immediately. The Complainant had not been given any advance notice of the meeting nor was she given a right to appeal the decision. The Complainant never received any written explanation or reasons for her dismissal. The Complainant in her evidence stated that nobody had told her that the Customer facing role would be so fast moving. The first week she was there she did some sort of tests with Mr Murphy and she was shadowing Mr Fagan. On the second week she was left to her own devices. Mr Fagan was in his office and there were only three other staff in the building. In relation to her absences, it was her evidence that she always rang in if she was going to be late or absent. The Complainant stated that she recalled the meeting of 30th July 2018 and she was fine with that meeting. At the meeting of the 14th August 2018, she understood what he said and wrote it down. The Complainant accepted that there were issues raised but she felt as he collected her telexes every day, he could see what she was doing, and he never said anything, so she felt she was doing fine. It was her evidence that she did not think there were any major issues with her performance. At the meeting on the 21st August 2018, they had discussed telex transactions she thought she was getting better she did not think she was getting worse. Despite what the email of the 21st August stated she was not offered more training. It was the Complainant’s evidence that on the 28th August 2018 she arrived on time to work and Mr Murphy called her into his office. He told her that she did not make her probation and that he was terminating her contract immediately because her paperwork was not up to scratch. It was the Complainant’s evidence that the meeting lasted about six minutes and that she had not been given any prior notice of the meeting. Under cross examination the Complainant accepted that she had trouble following the scripts in Blackrock and that when she moved to Dundrum Mr Murphy was trying to improve her performance. The Complainants representative directed the Court to their legal submissions and the case law citied in their submission. It was their submission that the Complainant was dismissed after only a few weeks. It was their submission that the Respondent had not met the requirement of showing substantiated grounds for dismissal in writing. Prior to the 21st August 2018 there was nothing in writing to her to suggest that her job was in jeopardy. Following her transfer to Dundrum she was only given four weeks to improve her performance. The decision to dismiss was rushed. In respect of Case C-103/16 Porras Guisado v Bankia SA.[2018] IRLR 563 the requirement to set out substantiated reasons in writing has not been met. As of the 21st August 2018 when the email was sent, it is clear from the contents of the email that no decision to dismiss had been taken at that point. It is their submission that the Complainants pending maternity leave had to have been part of the decision to dismiss. The Law Section 6 (1) of the Act provides that: 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”) Subsection(2A) goes on to provide that: 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 Directive 92/85/EEC (the Pregnancy Directive ) sets out a prohibition on the dismissal of a pregnant worker as follows: In order to guarantee workers, within the meaning of Article 2, the exercise of their health and safety protection rights as recognized under this Article, it shall be provided that: 1. Member States shall take the necessary measures to prohibit the dismissal of workers, within the meaning of Article 2, during the period from the beginning of their pregnancy to the end of the maternity leave referred to in Article 8(1), save in exceptional cases not connected with their condition which are permitted under national legislation and/or practice and, where applicable, provided that the competent authority has given its consent; 2. if a worker, within the meaning of Article 2, is dismissed during the period referred to in point 1, the employer must cite duly substantiated grounds for her dismissal in writing; 3. Member States shall take the necessary measures to protect workers, within the meaning of Article 2, from consequences of dismissal which is unlawful by virtue of point 1. Burden of Proof Section 85A of the Act now provides for the allocation of the probative burden as between the Complainant and the Respondent in cases coming with its ambit. This section provides, in effect, that the Complainant bears the initial burden of proving facts from which discrimination may be inferred. If those facts are established, and if they are regarded by the Court as of sufficient significance to raise an inference of discrimination, the onus passes to the Respondent to show that the principle of equal treatment was not infringed in relation to the Complainant. As was pointed out by this Court in Determination EDA0821, Kieran McCarthy v Cork City Council, at the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the facts proved. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts. The special protection afforded to pregnant woman against dismissal in European law requires that where a pregnant woman is dismissed the employer must bear the burden of proving that the dismissal was grounded on substantiated grounds unrelated to pregnancy or maternity. Hence, in every case in which pregnancy related dismissal is in issue, the factual combination of the dismissal and the woman’s pregnancy must, in and of itself, place the onus of proving the absence of discrimination firmly on the Respondent. This Court in Portroe Stevedores v Nevins [2005] E.L.R 283 considered the quality of evidence necessary to rebut a presumption of discrimination and held that it required “cogent evidence to discharge the burden”. Discussion The question that the Court has to address is whether or not the Respondent has rebutted the presumption of discrimination. In a line of authorities starting with the decision in C-177/88 Dekker v Stichting Vormingcentrum voor Junge Volwassenen[1990] ECR1-3841 the Court of Justice has made it clear that since pregnancy is a uniquely female condition any adverse treatment of a woman on the grounds of pregnancy is direct discrimination on the ground of her sex. Since the decision in Dekker the protection afforded to pregnant women in employment has been strengthened considerably in the case law of the Court of Justice and in legislative provisions of the European Union. Article 10 of Directive 92/85/EEC is of particular and far-reaching significance. As set out above Article 10 (2) requires that if a worker is dismissed while pregnant the employer “must cite duly substantiated grounds for her dismissal in writing” It is not disputed by the parties that there were a number of engagements with the Complainant in respect of her performance. It is accepted by the Respondent that no letter of dismissal was issued, and that the Complainant was not advised in advance of the meeting on the 28th August 2018 that it was a dismissal meeting. In a recent case from the Court of Justice Guisado v Bankia SA cited above the Court revisited the issue of dismissal during pregnancy and held as follows: 46 It is precisely in view of the harmful effects which the risk of dismissal may have on the physical and mental state of workers 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, save in exceptional cases not connected with their condition, provided that the employer gives substantiated grounds for the dismissal in writing (see, to that effect, judgment of 11 November 2010, Danosa, C 232/09, EU:C:2010:674, paragraphs 60 and 61). 47 Thus, when the dismissal decision is taken for reasons essentially connected with the worker’s pregnancy, it is incompatible with the prohibition on dismissal laid down in Article 10 of that directive (see, to that effect, judgment of 11 November 2010, Danosa, C 232/09, EU:C:2010:674, paragraph 62). 48 By contrast, a dismissal decision taken during the period from the beginning of pregnancy to the end of the maternity leave for reasons unconnected with the worker’s pregnancy would not be contrary to Article 10 of Directive 92/85, provided, however, that the employer gives substantiated grounds for dismissal in writing and that the dismissal of the person concerned is permitted under the relevant national legislation and/or practice, in accordance with Article 10(1) and (2) of Directive 92/85 (see, to that effect, judgment of 11 November 2010, Danosa, C 232/09, EU:C:2010:674, paragraph 63). It appears to the Court that the in order to rely on the exception provided for in Article 10 (2) the Respondent must give substantiated grounds for dismissal in writing. In this case the Respondent submits that they gave substantiated grounds in writing by email of 21st August 2018 a week before the dismissal. The Respondent drew the Courts attention to the response to the fifth question in the Guisado case which related to dismissal in the context of collective redundancies where the Court of Justice answered as follows: 52 According to Article 10(2) of Directive 92/85, when a worker is dismissed during the period from the beginning of her pregnancy to the end of her maternity leave, the employer must cite duly substantiated grounds for her dismissal in writing. 53 Thus, the employer must inform a pregnant worker, whom he is preparing to dismiss or has already dismissed, in writing, of the reasons not related to that worker for making collective redundancies within the meaning of Article 1(1)(a) of Directive 98/59. Those reasons can be, inter alia, economic, technical or relating to the undertaking’s organisation or production. It is the Respondent’s submission that paragraph 53 provides for the substantiated grounds in writing to be provided at the time the Employer is preparing to dismiss the Worker and that in the circumstances of this case the email of the 21st of August 2018 meets the requirement to set out substantiated reasons in writing. It is the Complainant’s submission that the email of the 21st August was issued in advance of the decision to dismiss and therefore cannot meet the requirement of article 10 (2) that the Employer “must cite duly substantiated reasons for the dismissal in writing” The Court notes that paragraph 53 requires that the Employer inform the pregnant worker of the reasons for making collective redundancies. This suggests that the decision must have already been taken to make collective redundancies and in those circumstances the Employer could be preparing to dismiss a Worker. In the case to hand the Court believes that the more relevant paragraph is paragraph 46, which appears to suggest that the decision to dismiss has to be taken before the Employer can cite substantiated grounds in writing for the dismissal. The facts of this case show that from the commencement of her employment the Complainant struggled with some of the core elements of the job. Prior to the Complainant notifying the Respondent of her pregnancy the Respondent had had a number of meetings with the Complainant to try and address the issues of concern and had warned her that if her performance did not meet the required standard her probation would be terminated. The Respondent met with the Complainant on a fortnightly / weekly basis in order to address the areas of concern, but the required improvements never materialised. It is clear to the Court that the Respondent has demonstrated that there were substantiated reasons for her dismissal which were solely linked to her performance. The Court finds that the Respondent has provided cogent evidence to rebut the presumption of discriminatory treatment related to her pregnancy. In the particular circumstance of this case the Courts finds that the omission in respect of setting out in writing the reasons for dismissal once the decision to dismiss had been made is not fatal to their case. On that basis the Court finds that the Respondent has rebutted the presumption of discriminatory treatment related to the Complainant’s pregnancy. Decision For all the reasons set out herein the Court has concluded that the Respondent has rebutted the presumption of discriminatory treatment related to the Complainant’s pregnancy. The Complainants appeal fails. The decision of the Adjudication Officer is upheld. The Court so Determines.
NOTE Enquiries concerning this Determination should be addressed to Mary Kehoe, Court Secretary. |
