Complainant

Respondent

Anonymised Parties

Sales person

Software company

Representatives

  self

Act

Complaint Reference No.

Date of Receipt

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

CA-00043308-001

30/03/2021

The complainant requested that the hearing would be held in private having regard to the sensitivity of the issues central to the alleged discrimination on the ground of disability and specifically a mental health related disability. The respondent in turn was informed about this request and to reply. They in turn replied and stated that they had no objection to the hearing being held in private. Based on the sensitivity of the medical evidence to be relied upon in evidence, the Adjudicator exercised his discretion to anonymise the parties and to hold the hearing in private.

I requested no subsequent correspondence from either party and both parties were fully heard on the day. My investigation of this complaint is based on prehearing submissions and evidence presented on the day of hearing; both parties were afforded the right to cross examine.

The complainant suffered a miscarriage and post that difficult event experienced depression. She had recently commenced employment with a multinational software corporation in a sales role. Early in her induction into the company she informed her manager that she had a miscarriage and was not performing as she would have hoped.

She believed that the manager paid little heed to that disclosure and stated that he also was going through a difficult time as his sister had been diagnosed with advanced stage cancer. She believed no reasonable accommodation was made by her manager that took account of her disability which at the time was seriously impacting on her ability to learn and perform to the required standard. Her depression was impacting on her motivation and also cognitively; relating to her ability to learn new material relevant to product sales.

She attended at Occupational Health Assessments and while the assessments did say that she was fit to work, the assessments emphasised the need for emotional support.

She found the interactions with her manager to be clinical and cold, primarily focusing on whether she was achieving the agreed sales targets or not.

The complainant states that she was new to Sales and appreciated the opportunity to have been selected for the position without previous sales experience.

The early induction into the company was also disrupted when her mentor had to move abroad, and a number of critical learnings were hampered by that fact and impacted on her capacity to acquire new skills so that she could meet the required sales targets.

She could understand why her colleagues had issues about her performance and commitment. She believes that she suggested to her manager that her team colleagues be informed of her circumstances and recent miscarriage. She doesn’t believe that occurred.

She believes that her manager was entirely insensitive to her mental and emotional pain arising from her depression stemming from a miscarriage. This was demonstrated by the manager organising work events such as family and children’s workdays.

The organisation operates a complex sales management system. She was making clear progress both in terms of sales performance and also passing corporate assessments that relate to the products and services that she would have to sell. While she was late in meeting some of those targets, such as a deadline date for passing product knowledge assessments and timelines for meeting required quality and monetary targets; very significant progress had been made.

That progress was ignored by her manager and the latitude he showed was not reasonable or fair having regard to all the circumstances of the initial few months that significantly impacted on learning and ability to meet targets.

She raised a grievance with Human Resources about her manager’s lack of empathy towards her and failing to make reasonable accommodation for her and recognise what she was succeeding in. He simply focused on what was negative and failed to see what was progressing.

The company did extend her probationary period and after 11 months informed her that the company would not be confirming her in a permanent role and had decided to terminate her contract and to exercise their right to do so during the probationary period.

The complainant was out of work for several months and has found alternative employment.

Early into her employment with the company the complainant informed her manager that she had a miscarriage and also about difficult personal circumstances. This was said to him in absolute confidence, and he respected that confidence. He did share personal information about what he was going through regarding a close family member, as support not to dismiss what the complainant was going through. At that meeting the complainant stated that she would be ok, and he took that to mean that she was fine to work.

He was sensitive to her situation and in effect halved her targets. He had hired her despite the complainant having no sales experience based on a belief that she possessed interpersonal skills that would be very effective in a sales role.

The company is a very successful organisation, and the culture of the organisation is based on a strong customer focus that is measured by both quantitative and qualitative measures. A sales role is a crucial position as it interfaces with the customer and the experience can lead to a sale now or into the future. Pipeline management like most successful sales organisations is very important.

As a successful software organisation the company deploys both independent and also direct managerial assessment into determining how a new colleague is performing.

The complainant’s probationary period was extended and lasted for 11 months. During this period the complainant was provided with detailed feedback about her performance targets. Reasonable accommodation was provided to her and that is demonstrated by, revised targets, a focus on improving performance, an extension of the probationary period to 11 months, excellent corporate learning resources, the consistency of direct management feedback and the fact that certain pipeline targets were independently assessed by a corporate unit.

The company has extensive support for induction and while the buddy system put in place did not have local presence for a short period, it most definitely had remote and online support.

The company provided very comprehensive training support to the complainant so that she could do her job. While she did achieve a pass rate concerning a product assessment, that assessment was completed late.

The complainant was provided with feedback that was positive and also about those areas that needed improvement. The focus was to assist so that the complainant would be successful in her role.

Team events were arranged that may have been emotionally difficult for the complainant; however, they were well flagged in advance and are a normal part of the everyday calendar of social events, family friendly corporate initiatives and normal activities that occur in many companies.

The complainant was referred to the company occupational health centre once she officially made it known that she was receiving medical treatment. These occupational health assessments stated that the complainant was fit to work.

The company is sympathetic to the circumstances of the complainant and responded compassionately and reasonably. It did make reasonable accommodation for her disability and during an extended probation; ultimately did decide that the complainant should not be confirmed into a permanent role and decided to terminate the contract. A sales role is a demanding one in the organisation and reasonable accommodation was provided based on all the evidence as presented both regarding induction; training; amending down sales targets, independent measures, frequent and detailed feedback, occupational health assessments and extending the probationary period to 11 months.

The complainant is accepted as having a disability and it is a fact that she was dismissed. It is also a fact that she had disclosed to her employer that she was suffering from depression arising from a miscarriage. She also informed Human Resources that she believed that her manager was unsupportive and detached and failed to comprehend the significance of her mental condition and what progress could be made between review periods. The initial burden of proof rests with the complainant to make out a prima facie case that she has been discriminated against as detailed at section 85(A) of the Employment Equality Act 1998 as amended. In Cork City Council v McCarthy EDA 21/2008, the Labour Court stated in this regard:

“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 or 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 a 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.”

Regan in Employment Law 2nd Edition Bloomsbury states at paragraph 17.12:

‘Less favourable treatment’ is more commonly known as ‘direct discrimination’ although that particular phrase is not used in the Employment Equality Act. In general, a complainant must prove less favourable treatment as compared with another person in a similar position to the complainant. If a complainant is unable to demonstrate that the chosen comparator/s were treated less favourably, if for example all employees were treated equally poorly or unlawfully, the claim of discrimination will fail. The wording of s 6 ‘would be treated’ allows for the use of hypothetical comparators in appropriate circumstances of alleged discriminatory treatment, other than in relation to equal pay where an actual comparator is required.’

The legislation in this case provides for a hypothetical comparator, and simply put has the employer provided reasonable accommodation that is appropriate so that she could have done her job as expected when compared to an employee who did not have that disability or no disability.

Based on the facts in this case the complainant has presented primary facts that I determine meet the prima facie threshold that gives rise to an inference of discrimination relating to discriminatory dismissal arising from her disability. In turn that requires that the respondent employer to rebut the presumption of discrimination that has been established by the complainant.  The complainant has raised the presumption of discrimination based on primary facts that are within the range of inferences where it is reasonable to infer that she may not have been afforded reasonable accommodation by her employer. She was potentially discriminated against by receiving less favourable treatment when compared to an employee who had no disability or a different disability to her, in so far that the alleged failure to provide reasonable accommodation prevented her from meeting the performance targets as set out by her employer during her probationary period. This presumption does not mean that on the complainant’s primary facts that discrimination is likely to have occurred; but it does require that the presumption is rebutted by the employer.

However, I do not find that the complainant has made out a prima facie case that she was victimised.

Section 74 of the Employment Equality Act 1998 requires the employee to show that:

(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

 The employer relies on the legal test that requires the complainant to prima facie raise the presumption that but for the grievance being raised by her; the performance improvement plan would not have commenced. On the facts, the complainant accepts that her performance was not satisfactory for a period; therefore, her performance prima facie appears to be the operative cause of the performance improvement plan during probation and not the fact that she subsequently complained about her manager alleging discrimination. The protected act of raising a grievance alleging discrimination followed on from the performance reviews that identified areas for improvement.

In Paul O’Neill v Tony & Guy Blackrock Limited [2010] ELR 21, the Labour Court made the following comments in relation to the “but for” test:

“The detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the Claimant having committed a protected act. This suggests that where there is more than one causal factor in the chain of events leading to the detriment complained of, the commission of a protected act must be an operative cause in the sense that “but for” the Claimant having committed the protected act he, or she, would not have suffered the detriment. This involves the consideration of the motive, or reasons, which influenced the decision maker in imposing the impugned detriment.”

Therefore as the complainant has not met the prima facie test concerning victimisation, I determine that she was not victimised by the respondent employer.

Section 16 of the Employment Equality Act 1998 states:

16.— (1) Nothing in this Act shall be construed as requiring any person to recruit or promote an individual to a position, to retain an individual in a position, or to provide training or experience to an individual in relation to a position, if the individual—

(a) will not undertake (or, as the case may be, continue to undertake) the duties attached to that position or will not accept (or, as the case may be, continue to accept) the conditions under which those duties are, or may be required to be, performed, or

(b) is not (or, as the case may be, is no longer) fully competent and available to undertake, and fully capable of undertaking, the duties attached to that position, having regard to the conditions under which those duties are, or may be required to be, performed.

And subsection 3 states:

(3) (a) For the purposes of this Act a person who has a disability is fully competent to undertake, and fully capable of undertaking, any duties if the person would be so fully competent and capable on reasonable accommodation (in this subsection referred to as ‘appropriate measures’) being provided by the person ’ s employer.

(b) The employer shall take appropriate measures, where needed in a particular case, to enable a person who has a disability —

(i) to have access to employment,

(ii) to participate or advance in employment, or

(iii) to undergo training,

unless the measures would impose a disproportionate burden on the employer.

(c) In determining whether the measures would impose such a burden account shall be taken, in particular, of —

(i) the financial and other costs entailed,

(ii) the scale and financial resources of the employer’ s business, and

(iii) the possibility of obtaining public funding or other assistance.]

(4) In subsection (3)—

‘appropriate measures’, in relation to a person with a disability —

(a) means effective and practical measures, where needed in a particular case, to adapt the employer’ s place of business to the disability concerned,

(b) without prejudice to the generality of paragraph (a), includes the adaptation of premises and equipment, patterns of working time, distribution of tasks or the provision of training or integration resources, but

(c) does not include any treatment, facility or thing that the person might ordinarily or reasonably provide for himself or herself;]

“employer” includes an employment agency, a person offering a course of vocational training as mentioned in section 12(1) and a regulatory body; and accordingly references to a person who has a disability include—

The Reasonable Accommodation obligation is clearly explained by Charleton J in Nano Nagle School v Marie Daly [2019] IESC 63 and the learned Judge provides a framework that is useful to analyse if reasonable accommodation was in fact provided or not in this case:

Leeway to a reasonable degree is to be afforded to disabled persons in order to enable them to do a job. As mandated by section 16(3) of the 1998 Act, those with a disability are ‘fully competent to undertake and fully capable of undertaking’ a job on ‘reasonable accommodation … being provided by the person's employer.’ Examples may assist. A person putting together exhaust manifests in a car factory requires to be both highly mobile and very strong, since the items are both heavy and cumbersome, as well as skilful in welding. A physical incapacity coming about while holidaying during employment may mean inability to do the job. On the other hand, a person sitting at a work bench and assembling ignition systems for a car may just as easily do that job from a wheelchair. That person's place of work or access to a workbench may need sensible adjustment. All these assessments are fact-based and legal analysis is not the object of the legislation, the Directive or the Convention. Returning to an earlier example: the principal flute in the symphony orchestra becomes disabled through an accident and is in a wheelchair. She is still a brilliant flautist with a golden tone but, to get on stage, she needs a ramp. To go on tour, a hoist or other measures are needed to get her on the bus. To be fully comfortable, a disabled toilet needs to have easy access to the ladies dressing room in the rehearsal venue or concert hall. These are what the legislation refers to as appropriate measures. And the Act requires that every ‘employer shall take appropriate measures, where needed in a particular case, to enable a person who has a disability’ to get to their place of work, to ‘to participate or advance in employment’ or to obtain ‘training’. Those steps must be taken ‘unless the measures would impose a disproportionate burden on the employer.’ What is proportionate or disproportionate descends into cost analysis based on ‘the financial and other costs entailed’, the scale of the employer, the state of the employer's financial health and ‘the possibility of obtaining public funding or other assistance.’ Section 16(4) amounts to a reiteration in stating that what needs to be done, if it can reasonably be done, is to take ‘effective and practical measures, where needed in a particular case, to adapt the employer's place of business to the disability concerned’. That can include ‘the adaptation of premises and equipment, patterns of working time, distribution of tasks or the provision of training or integration resources’. Recital 20 of the Directive is not contradictory of this analysis:

Appropriate measures should be provided, i.e. effective and practical measures to adapt the workplace to the disability, for example adapting premises and equipment, patterns of working time, the distribution of tasks or the provision of training or integration resources

During a probationary period an employer has a contractual right to terminate the contract, where that assessment is based on performance or fit for the organisation. The right to terminate based on performance was reaffirmed in the recent Court of Appeal Decision Donal O’Donovan v Over-C Technology Limited [2021] IECA 37:

   Fennelly J. in Maha Lingham referred to this principle in the following terms: -

“… according to the ordinary law of employment a contract of employment may be terminated by an employer on the giving of reasonable notice of termination and that according to the traditional law at any rate, though perhaps modified to some extent in the light of modern developments, according to the traditional interpretation, the employer was entitled to give that notice so long as he complied with the contractual obligation of reasonable notice whether he had good reason or bad for doing it.

…

… where a dismissal is by reason of an allegation of misconduct by the employee, the courts have in a number of cases at any rate imported an obligation to comply with the rules of natural justice and give fair notice and a fair opportunity to reply. This does not apply in the present case either. The defendant is not making any allegation of improper conduct so it is not the case and it is not contended that the [rules] (sic) of natural justice apply.

The employment contract states:

Termination of Employment 9.1 Your contract of employment may be terminated at any time by either party giving to the other the higher of:

9.1.1 the notice period prescribed by the Minimum Notice and Terms of Employment Act, 1973 (as amended); or

 9.1.2 any other notice period agreed by you and anonymised company in writing.

9.2 For business purposes, anonymised company requests one month’s notice from employees.

9.3 Anonymised company reserves the right to give you pay in lieu of any period of notice which you are required to give or are entitled to receive from anonymised company.

On the 2nd of October 2020 the complainant was informed that her employment would end as she had not met the required level of performance during the probationary period:

Further to our meeting today, I write to confirm the termination of your employment

during your probationary period. I have previously made you aware of my concerns regarding your performance during our regular 1:1 sessions and the decision was made at the end of your 6 month probation period that your probation would be extended to allow for further review and consideration of your employment with anonymised company.

On 24th June 2020, we initiated a 6 week Performance Improvement Plan (PIP) in order to support you with improving on your performance, this was then extended for an additional 6 weeks to 11th 2020 August where I communicated to you in that final review meeting that you had not successfully met the expectations set within the plan. Despite this, a second PIP commenced for a period of 7 weeks to the 25th September to provide further opportunity for you make the required and sustained improvements on your performance. During this period, I continued to monitor your performance and provide you with guidance, feedback and support, this process concluded on the 1st October 2020. Within the PIP were 4 key objectives (pipeline hygiene, new leads and open leads, deal closure, pipeline hygiene) you did not successfully complete all 4 of these objectives and on that basis, you have failed the PIP. As you have not demonstrated the required sustained improvement in your performance the decision was made to terminate your employment during your probationary period.

You have the right to appeal against this decision.

Your employment will terminate today and you will be paid in lieu of your one week’s notice period as provided for in your contract of employment. All benefits cease today and you will be paid for any accrued but unused annual leave entitlement in your final payment

The complainant did appeal the decision and the outcome was as follows:

anonymised and I have completed our hearing of your appeal against the termination of your employment during the probationary period. At the request of [HR Manager] on copy, please find attached our report. We have reviewed in detail the chronology of events leading up to the decision to terminate your employment and, having regard to the information gathered, we do not consider the decision to be unfair. Accordingly, we have concluded that the appeal is not upheld. Our consideration of your appeal is documented within the attached report where you will see outlined the information gathered and those interviewed. We appreciate this is not the decision you had been hoping for but we thank you for your patience and co-operation during this process. The issuing of this report marks the end of the appeal process

The dispute between the parties alleges that in fact the contract was not lawfully terminated as the complainant employee alleges that her dismissal was discriminatory because no reasonable accommodation was afforded to her by her employer and also that she was victimised as Human Resources did not take her complaint seriously that she was being harassed by her manager.

The respondent employer rebuts the allegation of discriminatory dismissal and in a detailed oral testimony the line manager on the balance of probabilities rebutted the presumption that discrimination had occurred.

The factual matrix in this complaint clearly show that the manager did accommodate the complainant. He significantly reduced her targets during the first few months of probation. However, these targets were not met by the complainant. It is this fact that gave rise to the performance improvement plan as reasonable accommodation had clearly been shown to the complainant by such a significant reduction in sales targets.

The training provided by the company was at times adhoc during the first weeks of induction; however, the decision to terminate the contract was made on the 9th of October 2020 about 11 months after commencing employment with the company. During this period any shortfall in training during induction had been fully addressed and this was not a case of not providing training so that the complainant could do her job.

The targets set by her manager were fair targets. The complainant prior to joining this company had not worked in Sales. It is a fact that a sales associate will be measured on their sales targets, and this was the case here. The targets set were similar as others; except they were modified and reduced so that she could improve. It is against these targets that the complainant did not meet expected standards.

The Occupational Medical Team assessed the complainant as fit to work. There is no dispute that she had a disability; however, that disability was reasonably accommodated as set out in the Act. Targets were modified; targets were clear and fair; targets were frequently reviewed, and the probationary period was extended.

The complainant believes that the manager was biased against her and had made up his mind that she would not pass her probationary period and only focused on her failings and not on her successes. However, the targets relied upon by the company were not solely based on the managers assessment. The company operates an independent department that independently rates prospects and quality of sales leads, that assessment also indicated areas that required improvement.

No one fact is crucial in such a situation; however, I determine that the factual matrix of evidence is sufficient to rebut the presumption of alleged discrimination and therefore I determine that the complainant was not discriminated against.

The targets set by her manager were fair targets. The complainant prior to joining this company had not worked in Sales. It is a fact that a sales associate will be measured on their sales targets, and this was the case here. The targets set were similar as others; except they were modified and reduced so that she could improve. It is against these targets that the complainant did not meet expected standards.

The Occupational Medical Team assessed the complainant as fit to work. There is no dispute that she had a disability; however, that disability was reasonably accommodated as set out in the Act. Targets were modified; targets were clear and fair; targets were frequently reviewed, and the probationary period was extended.

The complainant believes that the manager was biased against her and had made up his mind that she would not pass her probationary period and only focused on her failings and not on her successes. However, the targets relied upon by the company were not solely based on the managers assessment. The company operates an independent department that independently rates prospects and quality of sales leads, that assessment also indicated areas that required improvement.

No one fact is crucial in such a situation; however, I determine that the factual matrix of evidence is sufficient to rebut the presumption of alleged discrimination and therefore I determine that the complainant was not discriminated against on the ground of disability.

I have determined that the complainant was not victimised arising from raising a grievance alleging discrimination as she has not established facts that give rise to an inference or presumption of victimisation that would be required to be rebutted by the respondent employer.

The complainant has not met the burden of proof that the protected act, raising the grievance, was an operative cause, in the sense that but for the complainant having made the protected act, she would not have suffered the detriment of a performance improvement plan and dismissal during probation.

On the facts the complainant has not been victimised or discriminated against.

Victimisation-Discriminatory Dismissal-Reasonable Accommodation-Probation