Complainant

Respondent

Anonymised Parties

A complainant

A respondent

Representatives

Simon Donagh, B.L. instructed by  Brody and Company Solicitors

Rory Treanor BL  instructed by Peninsula Group Limited

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-00033981-001

24/01/2020

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant was employed by the respondent from 4 December 2017 until 15 October 2019.  Her monthly salary was €4,623.09 (gross)per month.

The complainant submitted that she was employed as a Marketing Manager by the respondent. She submitted that she informed the respondent of her pregnancy on the morning of 29 July 2019 and that later in the afternoon, the respondent informed her that she was at risk of redundancy.

The complainant submitted that this turn of events resulted in her having to take stress leave.  She outlined four meetings that took place in August, resulting in her being made redundant.

The complainant submitted that she sought copies of the bullying, harassment and disciplinary codes and procedures but was informed that they had yet to be finalised.

The complainant submitted that she was informed that there was a need to make her redundant in order to control payroll costs.

The complainant submitted that she was made redundant on 13 September 2019 with effect from 15 October 2019.  She submitted that she does not accept the veracity of the decision to make her redundant.

The complainant submitted that she has established a prima facie case of discriminatory dismissal on grounds of her pregnancy.  The complainant is seeking compensation in respect of the discrimination she has suffered and seeks that such compensation should be ‘effective, proportionate and disuasive’.

The respondent submitted that in the Spring of 2019 it commenced a restructuring process.  It further submitted that on 22 July 2019 it drafted a document entitled ‘Business Case for Proposed Redundancies’ where it identified the complainant’s role as one at risk of redundancy.  The respondent submitted that the existence of this document establishes that the decision to make the complainant redundant predates the notification of the complainant’s pregnancy.

The respondent submitted that the complainant was out on leave fore the week commencing 22 July and that accordingly it was only possible to inform the complainant of the risk of redundancy on 29 July 2019.

The respondent submitted that it met with the complainant on 6, 12, 21, & 28 August to discuss the redundancy of her role and at the final meeting she was informed that her role was, in fact, being made redundant. This decision was also communicated to the complainant on 13 September by letter.  The respondent noted that the complainant was afforded the opportunity to appeal the redundancy decision but choose not to do so.

The respondent submitted that two other roles were made redundant in 2019.

Both parties cited the case of Valpeters v Melbury [2010] 21 ELR 64 in support of their arguments:

“Section 85A of the Acts provides for the allocation of the probative burden in cases within its ambit. This requires that the complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule.”

The respondent submitted that the complainant had only raised speculation while the complainant argued that facts have been established.  A number of facts in the instant case are not in dispute: the complainant informed the respondent that she was pregnant on the morning of 29 July 2019 and, that afternoon, the respondent informed her for the first time that she was being considered for redundancy.  It is settled law that the period of pregnancy amounts to a specially protected period.  Arising from these undisputed facts, I am satisfied that this raises the presumption of discrimination and the burden of proof shifts to the respondent to rebut the inference of discrimination raised.

The respondent submitted that the decision to make the complainant redundant predated the notification of the complainant’s pregnancy in that the process began in the Spring and that the individual business case to make the complainant redundant was taken ion 22 July 2019.  In that regard, the complainant submitted the document outlining the business case purporting to have been drafted on 22 July.  However, I am not satisfied that it has been adequately established that this document predates the notification of the pregnancy to the respondent.

There was some discussion as to the complainant’s job title and the title of the role being made redundant, however, I am not satisfied that this has material bearing upon this case, in that the respondent sought to make the complainant redundant.  In that regard, I note from the oral evidence given during the hearing that the work undertaken by the complainant (or at least a part of it) was then undertaken by a male employee who joined the company after the complainant did and that the complainant was part of the process to recruit and train that employee. This evidence was not challenged by the respondent.

Arising from the written and oral evidence in this case, I find that the respondent has not rebutted the inference of discrimination raised by the complainant.  I find that the complainant has been discriminated against in accordance with the provisions of the Employment Equality Acts, 1998 – 2015.

Arising from the finding that complainant has been discriminated against, my decision is to award the complainant the amount of €55, 477.08 equating to one year’s salary, an amount which I consider to be effective, proportionate and dissuasive and appropriate in all the circumstances of this case.

Discriminatory dismissal, shifting burden of proof, pregnancy, compensation