Complainant

Respondent

Anonymised Parties

Operations Administrator

Window & Door Provider

Representatives

Self

Commercial Director and HR Manager

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-00038345-001

23/06/2020

The complainant commenced employment on 16 September 2019. She is employed as an operations administrator in the survey administration section of the respondent company. She works a 39-hour week and her gross salary per month is €1668.02.   On 10 October 2019 she told the respondent she was pregnant. The complainant claims she was discriminated against by the respondent by reason of her pregnancy (gender) and family status. She claims the respondent treated her unlawfully by discriminating against her in victimising her, in her conditions of employment and harassing her. The respondent denies it discriminated against the complainant. The claimant submitted her complaint to the Workplace Relations Commission on 23 June 2020 stating that the most recent date of discrimination was 19 June 2020.

The complainant commenced employment on 19 September 2019. At the time of her interview she was not aware she was pregnant. Her pregnancy was diagnosed as a high-risk pregnancy due to several medical issues. Due to the risk involved the complainant was required to attend a higher than usual number of medical and hospital appointments. The complainant told the respondent she was pregnant on 10 October 2019. At the start the respondent was fine, no issues with the claimant’s pregnancy, until the medical appointments started. New appointments were met with a “really another one” from the person with responsibility for HR.

The complainant stated she was deducted money for medical appointments, but these were subsequently paid for, after she raised the issue with the payroll section.

In December 2019 the complainant felt that things changed. She felt she was being bullied when she was called in for a review and told she needed to brush up and improve her spelling. Things seemed to return to normal until mid-January 2020 when she had a second review. At the second review her spelling was again mentioned and other mistakes that she had not been made aware of were brought up.

The complainant became aware of a work WhatsApp group that she states had every member of staff bar herself. This was used to organise work related social gatherings and share work related information. The complainant alleges she was not given the option to join this group.

In February 2020 the complainant received a written warning because a customer had not paid a deposit and for twice forgetting appointments. The complainant states that in her role she had no responsibility for chasing customers for deposits. The complainant stated on her complaint form that she appealed the written warning.

The complainant went on sick leave on 26 February 2020. She was due to return to work on 25 March 2020 but due to Government Restrictions arising from the Covid-19 pandemic the company had closed temporarily.  

The complainant wished to have her MB2 form signed by her employer so that she could claim her maternity benefit. She states the company had refused to sign the form as it had not been signed by her GP.   It was unclear what could be done about the form as the company had closed temporarily due to the Covid-19 restrictions. She contacted the Department of Social Welfare and was told to have her GP fill in the form and that her employer could e-mail in the relevant dates in lieu of signing the form. The complainant e-mailed the respondent on 02, 07, 09, 10 and 12 June 2020 asking that the relevant dates be sent to the Department of Social Welfare. She received an e-mail from the respondent on 12 June 2020 stating that a letter had been sent to the relevant person in social welfare. The Department of Social Welfare informed the complainant that her employer was requesting a letter from her GP stating the expected due date and the actual delivery date. The respondent had not sent the information to the Department as of 23 June 2020.

The complainant feels she was victimised when she made the mistake of letting a surveyor go out to a client without her having arranged for the deposit to be paid. She received a written warning for this mistake.

The complainant feels she was discriminated against in her conditions of employment because the respondent had not carried out a risk assessment. The work area outside her office was unsafe as there were items on the floor. After she told the respondent of her pregnancy the respondent did not do a risk assessment.

The complainant feels she was harassed because of the way she was spoken to when she made mistakes.   She felt the Commercial Director spoke down to her at meetings about the mistakes.

The complainant claims she was discriminated against by reason of her pregnancy when the respondent failed to provided information to the Department of Social Welfare in connection with her maternity benefit claim.

The Commercial Director described how the complainant did a good interview and had good experience.   He referred to her curriculum vitae including previous work experience in filing, arranging travel, keeping medical records and being good with details. The complainant commenced employment on 16 September 2019 and she fitted in well and usually arrived early for work. She received one week’s training in the role. The role included surveyor diary management, liaising with customers arranging appointments and processing payments. All duties were set out in the job description which was posted on INDEED.com advertisement to which the complainant applied.

In October 2019 the complainant spoke in confidence with the HR Manager and told her about her pregnancy. She did not want her pregnancy to be made known to other staff at that time. She was happy but concerned about being new in her job. The HR Manager reassured her and told her to speak with the Commercial Director.   He told her pregnancy was not an issue and hospital appointments would not be a difficulty.

The complainant was on probation and as she had made several mistakes he and the HR Manager met with her on 29 November 2019. This was before her official three-month review and was intended to give her an opportunity to improve. The complainant was made aware of the mistakes and additional training was arranged. The person who held the role of operations administrator before the complainant delivered the refresher training.

The complainant was included in the social activity of the company. There was one social event, the Christmas Party, held on Saturday 30 November 2019. The invitation to the party was sent to all staff on 16 October 2019. The complainant did not attend the party.   There was a distribution of gifts from the sales team and the complainant received some small gifts.   The company did not use a WhatsApp groups for company communications to staff. There were eleven staff in a private lotto WhatsApp group. This had nothing to do with the respondent company.

The complainant’s three-month review meeting took place on 13 December 2019. The complainant felt her work had improved. The Commercial Director explained that there were still issues with her work. He described how the company worked. There are at least six sections involved in the ‘customer journey’ including sales, survey, planning, fitting. When incorrect information is provided at any stage it has consequences for each other section. The complainant’s mistakes included not having the correct names or address or phone contact for customers, incorrect information being given to the survey team, forms not completed and deposits not being checked. The Commercial Director arranged further training with the owner to help the complainant understand the consequences of her mistakes.   The training session took place on 18 December 2019. A further review meeting was arranged for 13 January 2020.

The complainant received a verbal warning on 24 January 2020 because she had not ensured payment had been made in advance of a survey. There is a set procedure to be followed and payment is a vital step in arranging a survey. At the time of the verbal warning the complainant did not disclose that she was aware of another issue with a customer where payment had not been made.   When this came to light, just four days after the verbal warning, the complainant received a first written warning.   The first written warning was issued on 03 February 2020. The respondent stated this warning was not appealed.

The complainant received one weeks’ training when she commenced work. She was on probation and like all other employees on probation her performance was monitored. When mistakes were made they were brought to her attention before her three-month review and additional training was provided. After her three-month review further training was provided. The complainant’s performance was managed in the same way any other employee on probation. Time was given to correct mistakes and additional training was provided.

The complainant was on certified sick leave from 26 February to 25 March 2020. Two days before she was due to return to work she sent an e-mail requesting to be allowed to work from home. It was not possible to grant her request. The company closed temporarily on 27 March 2020 due to the Government Covid-19 restrictions. The complainant then continued certified sick leave from 25 March to 01 May 2020.  

When the complainant was first certified on sick leave, 26 February 2020, she sent a WhatsApp message to the HR Manager with a photo shot of the certificate. The HR Manager sent an e-mail to the complainant the following day acknowledging the WhatsApp message and requesting details of when her maternity leave would commence. The complainant replied on 05 March 2020 that her maternity leave would start on 01 May 2020. In the same e-mail she stated she had all the forms signed and would get them sent to HR asap.

The forms did not arrive, so the HR Manager sent a reminder on 11 March 2020 asking if the forms had been sent as they had not been received by that date. The forms did not arrive before the company closed temporarily on 27 March 2020.

Three days later the complainant sent a WhatsApp message to the HR Manager asking if there was any way she could have her maternity benefit form signed. The HR Manager replied that the company as closed and sent a link to ‘COVID -19 and Maternity Benefit’ on the Department of Social Welfare site that might be of assistance.

The company remained closed until June 2020. The HR Manager received a WhatsApp message from the complainant on 28 May 2020 telling her that the baby had been born the previous day.

On 02 June 2020 the complainant sent an e-mail to the HR Manager asking her to e-mail the dates of her maternity leave to the Maternity Benefits section of Welfare.   The HR Manager received this message when she returned to work on 08 June 2020. The complainant had sent a second e-mail the previous day. The HR Manager replied on 08 June 2020 stating that the maternity benefit form had not been received and the company did not have confirmation of dates from either the complainant’s GP or the hospital

There followed several e-mail exchanges between the complainant and the HR Manager. The respondent did not receive the relevant letter from the complainant’s GP until 26 June 2020. The HR Manager e-mailed a copy of the GP letter to the Maternity Benefit section of Welfare on the same day and received confirmation it had been received.

The complainant was not treated differently to any other employee. She was on probation and when she made mistakes these were explained to her and additional training was provided. She was given the opportunity to improve before her official three-month review.

The respondent had no issue with the complainant being pregnant and requiring time off for medical appointments. She was given time to attend 17 appointments between October 2019 and February 2020. There had been a payroll error in October / November, but this had been corrected and the complainant received all the payments due to her in the December 2019 payroll.  

The respondent denies that it discriminated against the complainant on the ground of pregnancy (gender) or family status. The respondent also denies that she was harassed or victimised.

Complainant’s Evidence

The complainant gave evidence and explained that she got on well at first in her new job when she started in September 2019. In October 2019 it was confirmed that she was pregnant and that it was a high-risk pregnancy due to several medical issues. She stated that she felt overwhelmed at times, particularly when she got e-mails about mistakes she had made. She was trying to cope with a new job and a high-risk pregnancy.

She describer the atmosphere as not nice as she was a shy person and she had to make conversation.   One person she felt did not like her.

At the review meeting in December she thought she was doing okay but the Commercial Director and the HR Manager pointed out mistakes. She received a refresh training from her supervisor and a second review meeting was scheduled for January 2020. She felt that the Commercial Director spoke down to her at the review meeting, but she said she could have been mistaken about his attitude.

At the second review meeting further mistakes were discussed. There were spelling mistakes and e-mails from installations about mistakes. Her impression at the end of the second review meeting in January 2020 was that if she did not improve she would be let go.

By early February she was getting anxiety attacks on the bus on the way to work. She went of sick leave and was certified by her GP as suffering with work related stress.

The complainant acknowledged she had made mistakes at work and that her mistakes had caused problems for surveyors. She received a first written warning due to an issue with a deposit. She had included in her claim form that she appealed this warning but at the hearing she stated that she had prepared a letter of appeal but had not submitted it to her employer.

The complainant thought she had sent the maternity benefit forms to the respondent, but she could not confirm that.   She stated that there were days when she could not leave the house. After the baby was born the complainant tried to get her maternity benefit sorted out but she did not know what she needed.   She stated that she did not look at Social Welfare before June 2020.

Responding to my question about the alleged victimisation the complainant stated she felt victimised when she made a mistake. She had let the surveyor go out to do a survey for a client, but she had not arranged payment. She felt victimised when she received a written warning.

Responding to my question about the alleged harassment the complainant stated she felt harassed by the way the Commercial Director spoke to her at meetings about her mistakes.   She felt she could not do anything right.

Respondent’s Evidence

The Commercial Director gave evidence and stated that he had interviewed the complainant for the role of operations administrator. She did a good interview. He was impressed by her experience, working with medical records and her attention to detail, which were important in the role of administrator in the survey department. The complainant fitted in well and she had a good relationship with the two experienced surveyors in the department. She arrived early for work.

The complainant told the HR Manager she was pregnant in October. She spoke in confidence as she did not wish to disclose her pregnancy to the other employees at the time. She said she was happy about her pregnancy but concerned about being in a new job. The Commercial Director stated that he reassured her that pregnancy was not an issue, appointments would be facilitated, and she also was protected by the Maternity Acts.

He confirmed that a payroll error had occurred, and that money had been deducted for her attendance at some appointments. When the complainant made the respondent aware of the mistake it was corrected in the next payroll. She was repaid €165.84 which had been deducted in error.

He arranged to meet with the complainant on 29 November 2019 together with the HR Manager to address some mistakes that had been made. This was in advance of the formal three-month review that applies to all employees on probation. That meeting was intended to draw her attention to the mistakes and give her an opportunity to improve before the formal review in December. The Commercial Director reassured the complainant that there was no problem about taking time off to attend medical appointments.   It was agreed that the complainant would received refresher training from her supervisor.

The three-month review took place on 13 December 2019. The complainant felt her work had improved since the previous meeting.   However, the Commercial Director noted some mistakes were still being made. He gave examples of the mistakes – details of the survey to be carried out not completed, incorrect or no names, not providing a full address or phone number or time being incorrect. These mistakes had consequences. Surveyors were unable to complete work and there was a knock on to the work of the other departments. The mistakes were not technical issues but arose from inputting errors and lack of attention to detail. The outcome of the review was that further training was arranged with the owner and a further review meeting was arranged for mid- January 2020. (The respondent provided copies of the notes of the meetings of 29 November and 13 December 2019 together with examples of the mistakes that had been given to the complainant at the meetings.   Copies of the training records for 28 November, 18 December 2019 and 29 January 2020 were provided)

The Commercial Director and the HR Manager met with the complainant on 24 January 2020. The complainant was advised that her performance was unsatisfactory, and an immediate improvement was required.   She was reminded that payment must be taken from customers before the survey where payment was by credit card or bank transfer. The complainant acknowledged that she had made mistakes and that she had not ensured payment was taken or monitored on all jobs. She was given a verbal warning.

Four days later, 28 January 2020, when a customer was not present for an arranged survey it was discovered that payment, due by bank transfer, had not been made. The complainant had failed to monitor the payment as appropriate. Consequently, the complainant was issued with a first written warning on 03 February 2020. The Commercial Director noted that the complainant had been aware of this mistake when they met on 24 January 2020, but she had not disclosed it to him.   He stated that the complainant did not submit a letter of appeal to the company as she had claimed in her complaint form to the Workplace Relations Commission.

The HR Manager gave evidence about the complainant’s sick leave and maternity benefit claim. The complainant was on sick leave from 27 February 2020. The HR Manager received a WhatsApp message on that date with a photo shot of the medical certificate. This was acknowledged by e-mail and a request to furnish the respondent with details of when the complainant’s maternity leave would commence and the maternity leave application form. She sent a reminder e-mail on 11 March 2020 as no forms were received by that date. The company closed temporarily on 27 March 2020 and by that date the maternity benefit application form had not been received. She received a WhatsApp message from the complainant on 30 March 2020 asking if there was any way to have her maternity benefit form signed.   She replied that the company was closed so she did not know what could be done but she sent a copy of a notice headed COVID-19 and Maternity Benefit from the Welfare website and suggested it might be best to contact them. The complainant agreed to contact Welfare directly.

When the HR Manager returned to work she on 08 June 2020 she replied to an e-mail sent by the complainant on 02 June 2020 concerning her maternity benefit application. She checked the HR file and noted that no application form had been received and there was no GP letter confirming the pregnancy and the relevant dates. She stated that a letter from the GP, dated 17 June 2020, was received on 26 June 2020 and she immediately sent a copy by e-mail to the Maternity Benefit section of Welfare.

Finding

The complainant has submitted a complaint under the Employment Equality Act, 1998. The complainant must prove, on the balance of probabilities, the primary facts on which she relies in seeking to raise a presumption of unlawful discrimination. The Act provides:

85A.— (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.

It is only if those primary facts are satisfactorily established and they are of sufficient significance to raise a presumption of discrimination that the onus shifts to the respondent to prove the contrary. (Mitchell v Southern Health Board [2001] 12 E.L.R. 201). The Labour Court in Melbury Developments Limited v Valpeters [2010] E.L.R. 64 held that the facts must be established on credible evidence. I must consider whether the complainant has established facts, on credible evidence, from which discrimination may be presumed.

The complainant claimed she was discriminated against by reason of her pregnancy, by reason of her family status and that she was victimised and harassed.   Discrimination related to pregnancy, family status, harassment and victimisation is defined in separate sections of the Act as follows:

Pregnancy

6(2A) Without prejudice to the generality of subsections (1) and (2), discrimination

on the gender ground shall be taken to occur where, on a ground related to her

pregnancy or maternity leave, a woman employee is treated, contrary to any statutory

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

Family Status

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’) which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned…

6(2) As between any 2 persons, the discriminatory grounds (and the descriptions of

those grounds for the purposes of this Act) are—

(a)…

(b)…

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

“the family status ground”)

Harassment

14A.— (1) For the purposes of this Act, where—

(a) an employee (in this section referred to as ‘the victim’) is harassed or sexually harassed either at a place where the employee is employed (in this section referred to as ‘the workplace’) or otherwise in the course of his or her employment by a person who is—

(i) employed at that place or by the same employer,

(ii) the victim’s employer, or

(iii) a client, customer or other business contact of the victim’s employer and the circumstances of the harassment are such that the employer ought reasonably to have taken steps to prevent it,

or

(b) without prejudice to the generality of paragraph (a)—

(i) such harassment has occurred, and

(ii) either—

(I) the victim is treated differently in the workplace or otherwise in the course of his or her employment by reason of rejecting or accepting the harassment, or

(II) it could reasonably be anticipated that he or she would be so treated, the harassment or sexual harassment constitutes discrimination by the victim’s employer in relation to the victim’s conditions of employment.

(2)…

(3)…

(4)…

(5)…

(6)…

(7) (a) In this section—

(i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds,

Victimisation

74(2) For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to—

(a) a complaint of discrimination made by the employee to the employer,

(b) any proceedings by a complainant,

(c) an employee having represented or otherwise supported a complainant,

(d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,

(e) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,

(f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or

(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.

Pregnancy / Family Status

The complainant was successful in obtaining a new job in or around the time that she became pregnant. She described how she felt overwhelmed at times in dealing with her responsibilities at work and coping with her high-risk pregnancy.   She acknowledged that she made mistakes at work. The mistakes included inaccurate recording of information, names, addresses, phone numbers and deposits not taken. The complainant acknowledged she received one week’s training when she was first appointed.

As the complainant was on probation her work performance was being monitored by the respondent. The respondent’s practice is to have a formal review of probationers at three and six months. The mistakes made by the complainant had consequences for the surveyors and other parts of the organisation. The respondent raised the mistakes with the complainant in advance of her three-month review. I am satisfied that this was good practice and intended to make the complainant aware of the mistakes and give her an opportunity to improve her performance before the formal review. The complainant did not present any evidence that this correcting of mistakes or review of performance was different for her than for any other probationer. I find the complainant has not establish facts from which it may be presumed she was discriminated against on the grounds of her pregnancy at the time of her first review.

The complainant was provided with three additional training sessions on 28 November, 18 December 2019 and 29 January 2020. The respondent provided copies of the relevant training reports, each signed by the complainant and the trainer. Following her review in December 2019 there was a second review on 24 January 2020.   The complainant acknowledged she made further mistakes concerning customer deposits. She was given a verbal warning and told that she must improve her performance. The complainant felt she was talked down to at this meeting and that this was discriminatory treatment. To establish facts from which it may be presumed a complainant has been discriminated against it requires more than a complainant’s feeling of discriminatory treatment. Copies of notes of the review meetings were submitted by the respondent.

At the time she received the verbal warning the complainant confirmed she was aware of another issue with a customer’s payment.   She did not disclose this at the meeting on 24 January 2020. Four days later the respondent became aware of that issue and consequently issued a first written warning to the complainant on 03 February 2020. I find that the complainant has not established that the correction of mistakes and the issue of a verbal and first written warning by the respondent was related to her pregnancy or that she was treated any differently to any other employee on probation. I am satisfied that the respondent gave the complainant training and opportunities to improve her work performance up to the time she went on sick leave.

I am satisfied that the complainant was not excluded from social activities by the respondent. A copy of the e-mail, dated 16 October 2019, inviting all employees to the Christmas party on 30 November 2019 was submitted by the respondent. The complainant did not attend the party.

The complainant claimed that she was discriminated against because she had difficulty in getting her maternity benefit form and claim processed by the respondent. The Maternity Protection Act, 1994 requires the pregnant employee to provide the following notification to the employer:

9.— (1) Entitlement to the minimum period of maternity leave shall be subject to a

pregnant employee—

(a) having, as soon as reasonably practicable but not later than four weeks before the commencement of maternity leave, notified in writing her employer (or caused her employer to be so notified) of her intention to take maternity

leave; and

(b) having, at the time of the notification, given to her employer or produced for her employer’s inspection a medical or other appropriate certificate confirming the pregnancy and specifying the expected week of confinement.

The complainant in her evidence was uncertain whether she has sent the maternity benefit application form to the respondent.   The respondent submitted copies of two e-mails sent to the complainant requesting the relevant dates and forms.   I am satisfied the respondent did not receive the appropriate medical certificate until 26 June 2020. The respondent submitted copies of e-mails sent to the Maternity Benefit section on 26 June 2020 providing all the information required for the complainant to receive her maternity benefit. The complainant stated in her evidence that she had not checked the Welfare website until June 2020 to find out what she needed to claim her maternity benefit. I am satisfied that the respondent requested information from the complainant twice in March 2020 which the complainant failed to provide.   I am satisfied that the respondent provided the relevant information to the Maternity Benefit section of Welfare as soon as it became available to them. The complainant confirmed that she did receive her full maternity benefit payments. I find the complainant has not established facts from which it may be presumed that she was discriminated against by the respondent on the grounds of her pregnancy.

The complainant did not present evidence of discriminatory treatment on the ground of family status.

Harassment

The complainant in her evidence stated she was harassed by the way the Director of Operations spoke to her at meetings.   She felt that he spoke down to her.   She also stated that she could have been mistaken about his attitude. I am satisfied that the complaint of harassment as presented by the complainant is not within the definition of harassment contained in S. 14A of the Act.   I find that the complainant was not subjected to harassment by the respondent. I find that the complainant did not establish facts from which it may be presumed she was discriminated against.

Victimisation

The complainant in her evidence stated she felt she had been victimised because she made mistakes. She had let a surveyor go out without having arranged the necessary payment from the customer. She stated she had received a written warning because of this mistake.   What the complainant described as victimisation does not come within the definition contained in S.74 of the Act.   I am satisfied from all the evidence and the documents submitted by the respondent that the complainant was corrected on several occasions for mistakes and was provided with additional training and opportunities to improve her performance. I find that the complainant was not victimised by the respondent.

Conclusion

I am satisfied that the complainant has not, on the balance of probabilities, established facts from which it may be presumed that she was discriminated against on the ground of pregnancy (gender) or family status. She did not establish a link between her performance reviews, warnings and her pregnancy. She did not make an application to the respondent for maternity leave in the form required in the Maternity Protection Act and the delay in processing her application was not the fault of the respondent.

I am satisfied that the complainant has not, on the balance of probabilities, established facts from which it may be presumed that she was discriminated against by reason of harassment. The complainant’s evidence concerning her claim of harassment was not within the definition of harassment contained in S. 14A of the Act.

I am satisfied that the complainant has not, on the balance of probabilities, established facts from which it may be presumed that she was victimised. What the complainant described as victimisation does not come within the definition contained in S.74 of the Act.

I find that, on the balance of probabilities, the complainant has not established facts from which it may be presumed that she was discriminated against.

I find the complaint is not well founded and that the complainant was not discriminated against on the grounds of pregnancy (gender) or family status.

I find the complainant was not discriminated against by reason of harassment.

I find the complainant was not victimised.

Discrimination Pregnancy

Harassment

Victimisation