Complainant

Respondent

Parties

Sandra  Varian

Zahra Publishing Limited Zahra

Representatives

Natasha Hand of Richard Grogan & Associates

Ciaran Doherty B.L. instructed by Nicola Dowling of Williams Solicitors LLP

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-00048120-001

11/01/2022

The complainant is claiming she was dismissed in a discriminatory manner on the grounds of gender and family status. The respondent says the complainant’s employment was terminated during her probationary period, in accordance with her contract of employment.

Preliminary Issue: In their submission the complainant referred to emails which were copies of an email sent by the CEO to the respondent’s solicitor and a reply from the solicitor. The respondent contends this was sent inadvertently and falls within the area of privileged legal advice. The complainant contends that privilege was lost when it was disclosed to the complainant. In considering I refer to a recent decision of the Circuit Court, Record No. 2019/03674 in the matter of the Data Protection Acts 1988 & 2003 and in the matter of an appeal under section 26 of the Data Protection Acts 1988 & 2003 between Aimee Scott appellant -and- the Data Protection Commissioner (no. 1) respondent. In that case the judge referred to a submission of the Data Protection Commissioner which stated:

“The four elements that are required in order for a claim of legal advice privilege to succeed are summarised by the Commissioner in its submission as:

(i)                  there must be a communication between a client and a lawyer;

(ii)                such communication must be made in confidence;

(iii)               such communication must be made in the course of a professional legal relationship, and

(iv)               such communication must be made for the purpose of giving or receiving of legal advice.”

He went through the four elements in coming to his decision on the matter and I will do the same to decide if the emails seen by the complainant fall within the category of Privileged Legal Advice. Firstly, the emails were a communication between a client and a lawyer. Secondly, they were made in confidence; albeit that they were subsequently sent to the complainant inadvertently. Thirdly, the emails were made in the course of a professional legal relationship. Fourthly, the emails involved the giving of legal advice. Therefore, I do find that these emails are subject to Privileged Legal Advice and, as such, I cannot refer to them in the consideration of the evidence or in this decision.

The complainant submits she commenced employment with the respondent as Group Sales Manager on 1 July 2021 and was dismissed on 13 December 2021 and this dismissal was discriminatory on the grounds of gender and family status as she was pregnant and had family plans. Her contract said her probationary period was 6 months but this could be extended to 11 months at the company’s discretion.

The complainant says she was poached to join the respondent. She was led to believe that 60% of the business was repeat business and 40% was to be repeat business. On 8 May 2021 the complainant rang the CEO and advised she had been undergoing IVF treatment and asked him about maternity leave pay. The complainant wanted her employer to know she may be taking maternity leave at any time. On 5 August 2021 she advised the CEO she was 12 weeks pregnant and he seemed a little surprised and asked how long did she plan on taking maternity leave.

On 16 November the complainant spoke with the Commercial Director who told her she was coming under pressure about her figures. She apologised for reassuring her only two weeks previously that she had nothing to worry about. Following this the complainant asked to see the CEO. When they met the CEO seemed very dismissive from the start. The complainant said she was worried about her job and he said he was not happy with her sales. The complainant asked if her sales were not up by 13 December was it goodbye and the CEO said it was looking that way. On 18 November the CEO sent the complainant an email setting out issues relating to her performance and said he knows the complainant feels she has enough training and support to help achieve her targets but to let him know if further assistance is needed. He said the company would be reviewing her performance and may terminate her contract at the end of her probationary period.

On 13 December the complainant had another meeting with the CEO over zoom when he let her go from her employment.

The complainant was informed by a former colleague who worked for the respondent that the complainant’s predecessor had her probationary extended in circumstances where she had generated less sales than the complainant.

The complainant contends this was a discriminatory dismissal, where the respondent saw her pregnancy as an issue and would have extended her probationary period if she had not been pregnant.

The respondent submits the complainant was engaged as a Sales Manager by the respondent with effect from 1 July 2021. It was an express term of the complainant’s terms and conditions of employment that the complainant would be on probation from 1 July 2022 to 1 January 2022. This could be extended for a period up to 11 months post-commencement.

The complainant was one of ten candidates invited to apply for the position after the respondent had unsuccessfully advertised the position.

The respondent disputes that the complainant rang the CEO on 8 May 2021 and says it could not have happened as she did not have his number. At no time did she make the company aware she was undergoing IVF treatment prior, during or immediately after her engagement.

When she started the complainant was given a year 1 target for the period June 2021 to December 2021 of €250,000 for new/repeat business. This was reduced to €225,000, by agreement, to give her more time to become familiar with the respondent’s products. The year 2 target was €750,000. Following meetings with the complainant about her performance the year 1 target was reduced on 18 November 2021 to €100,000, to be achieved by 13 December 2021.

The complainant commenced employment on 1 July 2021 and was given extensive training by the company. On 5 August 2021 she advised the company she was pregnant and due to commence maternity leave on 29 January 2022. She rang the CEO and said he was going to surprised, shocked and unhappy that she was announcing her pregnancy so soon after starting. The CEO congratulated her, said he was surprised but was genuinely happy for her. He asked how long she would take for her maternity leave and the complainant indicated she would start her maternity leave in January 2022.

The company was concerned by the complainant’s failure to generate new business. On 21 September the Commercial Director met the complainant to discuss her work. She was asked to cancel the agency roadshow as the decks were not up to the standard expected; they contained the wrong content for the task and focussed on content creation rather than owned media distribution. The Commercial Director went on to have numerous informal conversations with the complainant about the poor sales.

On 11 October the Commercial Director was asked if the complainant’s role was at risk and she confirmed sales were a concern but at that point they were not looking at it as a performance issue and her role was not at risk. The Commercial Director did say her conversion rate was still a very real concern and more attention should be paid to every proposal. The complainant had regular weekly meetings with the CEO until a new Commercial Director was appointed.

On 28 October 2021 the new Commercial Director spoke to the complainant about her slow sales and the complainant said she understood the concern.

On 5 November the CEO contacted the company’s solicitor seeking legal advice in relation to the complainant’s poor performance.

On 16 November 2021 the Commercial Director emailed the CEO setting out the issues with her performance. Then on 18 November the CEO met the complainant and followed this up with an email setting out concerns about performance and setting targets to be met by 13 December and stating the complainant’s performance would be further reviewed and her contract may be terminated at the end of her probationary period. The complainant was out sick for the period 19 – 25 November, submitting a sick leave citing “work related stress”.

The CEO and the Commercial Director met the complainant on 28 November 2021 to discuss her sales figures and failure to meet the reduced target of €100,000. The complainant accepted she did not meet the target and indicated that the role was not what she thought it would be, that it was a business development role. The complainant did not cite any equality related discrimination during the meeting.

On 13 December the respondent emailed the complainant to advise they would not be extending her probationary period and the company would be terminating her employment. The following day the complainant appealed the decision. The appeal was heard on 17 December and the outcome was sent to the complainant on 21 December 2021.

The respondent submits the complainant was dismissed during her probationary period on account of her poor performance, specifically the poor sales generated.

The respondent submits the complainant has not established a prima facie case for discrimination.

I have to decide if the complainant was dismissed in a discriminatory manner on the grounds of gender and family status, arising from her pregnancy. The Labour Court in Determination No. EDA2230 stated:

“In the case of Croc’s Hair and Beauty v. Helen Ahern, ADE/16/58, this Court set out at some length its understanding of the legal protections for pregnant women. It is not necessary to re-state here the full text of the Court’s Determination in that case. It is sufficient to summarise this by referring to the fact that the then ECJ recognised in the Dekker case, to which the Complainant’s submission has referred, that, as pregnancy is a uniquely female condition, any less favourable treatment on grounds of pregnancy constitutes direct discrimination on grounds of gender. This principle has been copper fastened by the recognition of equality on gender grounds in the Charter of Fundamental Rights of the European Union which was, in turn, incorporated into the Lisbon Treaty. The jurisprudential principle is set out in Directive 2006/54, which provides that any less favourable treatment of a woman related to pregnancy or to maternity leave constitutes unlawful discrimination.

In drawing on these sources and on relevant case law, this Court in the Croc’s case observed that the special protection afforded to women from the commencement of their pregnancy until the end of their maternity leave is to be regarded as a fundamental right and that where a pregnant woman is treated adversely because of her condition during this period, the employer bears the burden of proving, on cogent and credible evidence, that such treatment was in no sense related to her pregnancy.

The first issue, therefore, for the Court to consider is if, in fact, there was adverse treatment of the Complainant in contravention of the provisions of the Acts.”

In this case the complainant started working for the respondent on 1 July 2021 and her contract stated she had a 6 month probationary period; finishing on 31 December 2021 This could be extended to a maximum of 11 months. She informed the CEO that she was pregnant on 5 August 2021. The first performance issue was raised on 21 September and this was followed by a series a meetings which ended when the complainant’s employment was terminated on 13 December 2021. The evidence is that the complainant’s sales figures were low, when compared to the targets set by the respondent and there were other issues about the quality of her presentations. The complainant said the job was not what she had expected but otherwise accepted she had adequate training and appears to have offered no other explanations for her low performance. The respondent twice reduced the targets but there was no improvement in the complainant’s figures. The respondent dismissed the complainant within her six month probationary period. There was no discussion about extending the probationary period. The complainant said she had a lot of business in the pipeline and her probationary period would have been extended if she was not pregnant.

A former employee gave evidence that she had less sales than the complainant and her probation was extended.

The respondent did not dispute the level of business the complainant had in the pipeline and confirmed it was discussed in the middle of November, but the complainant had converted very little of this potential business by 13 December. It was not made clear in the hearing how much of this business in the pipeline might have or did convert into sales after the complainant departed.

It is my conclusion that the complainant would have had her probationary period extended if she had not been going on maternity leave; this would have been an opportunity to convert some of the business in the pipeline and develop new business in the new year. As set out above I find her dismissal falls within the category of being related to her pregnancy and is therefore discriminatory on the grounds of gender.

No evidence was put forward on the separate ground of family status and I therefore conclude the complainant has not established a prima facie case of discrimination on this ground.

For the reasons set out above I find that the complainant’s dismissal was related to her pregnancy and is therefore discriminatory on the grounds of gender. Taking all the circumstances of this case into account I award the complainant compensation of €32,500; equivalent to six months’ salary.

No evidence was put forward on the separate ground of family status and I therefore conclude the complainant has not established a prima facie case of discrimination on this ground.

Discriminatory dismissal – pregnancy related