Complainant

Respondent

Parties

Emma  Rooney

Nomos Productions

Representatives

Crushell & Co

 Alastair Purdy & Co. Solicitors

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-00051201-001

17/06/2022

The complainant is Emma Rooney.

She commenced employment with the respondent on October 15th, 2021, as a Senior Producer and was issued a contract of employment on October 12th, 2021, on a salary of €67,000 per year.

Her employment was terminated on March 3rd, 2022 at which point she was pregnant, a fact known to the respondent.

The respondent is a television and video production company which employs fourteen staff, and it creates video content for major brands.

The complainant’s duties included assisting in initial client briefings for projects through to finish, assisting with pitches and proposals for key accounts or large products, managing several projects simultaneously, managing feedback from clients and creators, and ensuring that project deliverables stayed within budget and timings allocated and scheduling projects efficiently.

The complainant reported to the Managing Director and Co-founder, Marc Dillon and to Robin Murray, another Director and Co-Founder.

Studies in Ireland and in other countries show that a significant proportion of women experience negative or unfair treatment in the workplace during pregnancy (Adams, 2005; La Valle et al, 2008; Russell and Banks, 2011; Russell, Watson, Banks, forthcoming).  Such treatment can range from the extreme of dismissal on notification of pregnancy, unfair selection for redundancy or missing out on a promotion, to more subtle forms of unequal treatment, such as changes in attitude from employers or co-workers.

The Employment Equality Acts, 1998 to 2008, prohibit pregnancy related discrimination in Ireland.

The Acts cover remuneration; access to employment and interviews; conditions of employment; training and experience in relation to employment; promotion and the re-grading or classification of posts. Irish equality law is also shaped by EU Directives and decisions of the Court of Justice of the European Union interpreting the Directives and rights under the EU Treaty.

Pregnancy-related discrimination case-law from the European Court of Justice has been used to a considerable extent in hearings in Ireland.

One of the key cases, Dekker v Stichting Vormingscentrum voor Jong Volwassenen (ECJ 177/88), held that discriminatory acts related to pregnancy are directly discriminatory on the gender ground and that a pregnant woman cannot be compared to either a sick man or a non-pregnant woman.

The Court found that since pregnancy is a uniquely female condition, where a woman experiences unfavourable treatment on grounds of pregnancy such treatment constitutes direct discrimination on the grounds of gender within the meaning of the Equal Treatment Directive (76/207/EEC), even though there is no male comparator.

Cases of pregnancy- related discrimination taken under the Equality Employment Acts are generally taken on the gender ground but may also be taken on the family-status ground or on more than one ground.

Discriminatory dismissal on any of the nine grounds is prohibited under the Employment Equality Acts. Within the Irish legislation, claimants of pregnancy-related dismissal are also protected by the Unfair Dismissals Acts (1977 to 2005) which were amended by the Maternity Protection Acts (1994 and 2004).

This legislation implements the provisions of the Pregnancy Directive (92/85/EEC), which provides for special protection to be given to women, by prohibiting dismissal from the beginning of pregnancy until the end of maternity leave except for reasons unconnected with the pregnancy.

In pregnancy discrimination and dismissal cases heard in Ireland, claimants often cite the European Court of Justice cases, Browne v Rentokil (1998 ECRI/4185) and Webb v EMO Cargo (C-32/94), where the Court ruled that the entire period of pregnancy and maternity leave is a special protected period during which both the Equal Treatment Directive (76/207/EEC) and the Pregnancy Directive (92/85/EEC) prohibit pregnancy-related dismissal on the grounds of equality.

This is in view of the harmful effects which the risk of dismissal may have on the physical and mental state of pregnant women, including the particularly serious risk that they may be prompted voluntarily to terminate their pregnancy (Webb v EMO Cargo, 1994).

Prior to accepting a full-time role with the respondent, the complainant had worked there as a freelance producer for two and a half weeks. On October 5th,  2021, the complainant advised the respondent that she was pregnant before she was formally offered the position

In response to this she was congratulated on her pregnancy and offered her the position regardless.

In an email on October 7th, 2021, the respondent said that;

 “our usual company policy is that only staff members who have served two years can qualify for paid maternity leave, but we will waive that on this occasion”.

In the intervening months the complainant received positive feedback for her work.  She also had a very good rapport with her colleagues and management.  However, a meeting was arranged in March with the complainant although she was not advised of the purpose of the meeting.

She was told that they were going to terminate her employment. The complainant felt that she had built up a strong rapport with senior management, and also believed they were happy with her work.

She submits that both directors repeatedly stated that there was nothing specific that they could tell her except that she had done nothing wrong.  They also informed her that no complaint had been made against her by clients or colleagues and that they had no issues with her work.

Robin Murray even went so far as to say that she was a “great producer” and that he would give her a “glowing reference”. She was confused and became very upset and had to leave the call.

Atafurthermeetinglaterthatday,theytoldthecomplainantthatthey were letting her go because she wasn’t a good fit for the company and that she didn’t have the “style” they were looking for.  They also stated that she didn’t have “synergy” with the team and that she was not meeting expectations as a senior producer position thatwasahighcosttothecompany.

She was also told that she had failed to pass certain “markers” on the internal matrix that they use to assess all staff at the end of their six-month probation period, but she had never been made aware of this matrix and the respondent refused to provide her with any detail.

The termination came two weeks after she had met with Marc Dillon to discuss details about her maternity leave. At this meeting, she had told Marc Dillon that her last day of work would be April 1st, 2022, but that it could be earlier as she was unwell.

At this meeting, Marc Dillon had advised her on how to apply for maternity leave payment. He never suggested that anything was wrong or that her job was at risk.

The termination had an impact on her mental health. She was eight months pregnant at the time and was immediately concerned that such a stressful event would affect the safe arrival of her baby. As a result of all of this, the complainant had to seek medical assistance and she was put on medication to manage her stress in the lead up to her birth.

The complainant strongly believes that when her maternity leave arrived, the respondent decided to let her go.

Evidence of the complainant, Ms. Emma Rooney

The complainant give evidence on affirmation.

She outlined her credentials and experience and the nature of her work with the complainant which is as set out above in the submission. She had no previous disciplinary or performance issues prior to the termination of employment.

She was initially recruited for a temporary two-week project and ultimately appointed on a salary of €67,000 per annum.

She stated that prior to accepting the role she advised the company of her pregnancy. It was agreed that she would be entitled to be paid during maternity leave even though she did not meet the respondent’s eligibility criteria. In due course she said she received the company handbook and a contract of employment.

Although the contract contains a provision for a three month review the witness stated that no issues had been brought to her attention at the end of that period. Likewise, she said that there was no discussion of any extension of the probation.

She confirmed again that there had been no disciplinary issues raised by anyone.

The first she became aware of any complaints was when she read the submissions of the respondent for this hearing. In fact, she received positive responses from her co-workers. There were no meetings with the management of the respondent to review performance in the course of the probation. She said that she fully expected to return to work following the completion of her maternity leave.

In response to a question as to whether she had any negative experience with Amy O’Connor she said that there had been one occasion when Miss O'Connor said she felt undermined, and the complainant immediately apologised. But this was the only occasion when this happened.

She repeated that none of the issues referred to in the respondent’s submission were brought to her attention either by means of calls, emails, or discussion. Likewise, the witness stated that none of the options outlined in the respondent’s handbook for dispute resolution.

She confirmed in her evidence that she had not been made aware of any formal complaint against her and indeed in her final conversation with the MD he confirmed that there had been no wrongdoing on her part. She had not been given any prior warnings.

The witness also re-iterated that she had not been given any written reasons for her dismissal.

She had been invited to a meeting but not told its purpose in advance. The two directors were present and said that they could not say too much or give too much information, but they told her that she was not ‘the right fit’ for the company but this was not put in writing.

Asked why her pregnancy was decisive in the termination of her employment she answered that she thought it would be very disruptive to the company as well as it having to incur the payment of half salary to her for the duration of her absence on maternity leave.

In response to questions from the respondent’s counsel it was put to her that the respondent could have declined to appoint her in the first place if it was concerned about her pregnancy. However, the witness said that they needed her services and that was why they proceeded with the appointment.

She also agreed that she had attended group sessions on improving things in the workplace and that these took place instead of performance appraisals in the course of department meetings.

In response to a question regarding the call from Ms. O’Connell about being undermined the witness said that this related only to the style in which questions were being asked by her and it was just a conversation. She stated that her reference to leaving her ‘out of the loop’ was no more than an attempt to reduce pressure of work on her. She denied that it was another negative interaction with Ms. O’Connell.

A number of other questions were put to her about the discussion in relation to diary invites referred to in the submission, but the witness could not recall this exchange. She defended other actions she took on the basis that it made tracking email is easier or was more efficient.

She also confirmed in response to a question that at the administrative meeting on arrangements for her maternity leave she did not get any sense that this was going to cause difficulty.

In conclusion, she said she turned down the offer of a settlement payment on legal advice.

Legal Submissions

Section 6 (1) of the Unfair Dismissals Act [1977-2017] provides that:

 “Subject to the provisions of this section, the dismissal of an employee shall be deemed for the purpose of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal” - i.e., there is a statutory presumption of unfairness unless the respondent employer can show there were substantial grounds justifying the dismissal.

Section 6 (2) provides that without prejudice to the generality of Section 6 (1), the dismissal of an employee shall be deemed to be unfair if it results wholly or mainly from one of….

(f)       the employee’s pregnancy, attendance at ante-natal classes, giving birth or breastfeeding or any matters connected therewith,

(g)      the exercise or proposed exercise by the employee of the right under the Maternity Protection Act 1994 to any form of protective leave or natal care absence within the meaning of Part IV of that Act, or to time off from work to attend ante-natal classes…..”

Article 10 of EU Council Directive 92/85/EEC (the Pregnancy Directive) specifies:

“1. Member states shall take the necessary measures to prohibit the dismissal of

workers….during the period from the beginning of their pregnancy to the end of the maternity leave….save in exceptional circumstances not connected with their condition which are permitted under national legislation….;

1.        if a worker….is dismissed during the period referred to in point 1, the employer must cite duly substantial grounds for her dismissal in writing….”.

As it has been determined that the duration of pregnancy is a protected period, it follows that a  particular onusfalls on an employer with respect to any contemplated dismissal during this period in terms of citing “substantial grounds…in writing”.

This is the level at which the bar is set. It is not sufficient for an employer to simply aver that a dismissal during pregnancy was for other unrelated reasons. Some persuasive evidence of an unrelated justification for the dismissal is required. In the case of Assico Assembly Limited v Corcoran (EED 033/2003), the Labour Court held:

“Where the employee is dismissed while pregnant or on maternity leave, both legislation and case law states that the employer must show that the dismissal was on exceptional grounds not associated with her pregnancy and such grounds, in the case of dismissal, as a matter of law…..should be set out in writing.”

The case of Knapczyk and Aveo Foods Limited (ADJ-00026176) provides a useful summary of the case law relating to pregnancy and the dismissal of an employee.

Section 6 (2A) of the Employment Equality Acts 1998 and Article 10 of the Pregnancy Directive which provides that.

“Pregnant workers cannot be dismissed during the period from the beginning of their pregnancy to the end of Maternity Leave, save in exceptional circumstances, not connected with their condition which is permitted under national legislation and/or practice. If a worker is dismissed during that period, the employer must cite dually substantiated grounds for her dismissal in writing”.

The complainant referred to a case of a Director of Marketing –v- a Telecom and Electronic Communications Infrastructure Support Company ADJ00019765 which determined that.

“The fact of being pregnant is sufficient grounds for a prima facie case to be made”.

The Adjudication Officer pointed out that the Labour Court has held in a number of key decisions that no employee can be dismissed while pregnant unless there are exceptional circumstances unconnected with the pregnancy and those exceptional circumstances are noted to the employee in writing.

The case of Corcoran –v- Assico Assembly Limited EED033/2003 is a case where the Labour Court found that the case law of the European Court of Justice and Directive 92/85 requires an employer to set out “duly substantiated grounds in writing, when a pregnant employee is dismissed in holding that.

“Where the employee is dismissed while pregnant or on Maternity Leave, both legislation and case law states that the employer must show that the dismissal was on exceptional grounds not associated with her pregnancy and such grounds in the case of dismissal, as a matter of law and in the case of discrimination as a matter of good practice should be set out in writing”.

The case of Healy –v- Trailer Careholdings Limited EDA128 is one where the Labour Court held.

“Where a pregnant woman is dismissed during the period of special protection the employer bears the burden of proving on cogent and credible evidence that the dismissal was in no sense whatsoever related to her pregnancy”.

In Dymnicka –v – Cylemore Foods Group Limited UD-1003/2007 the Employment Appeals Tribunal considered whether an employee was dismissed wholly or mainly because of her pregnancy held that the onus was on the employer to demonstrate their decision to dismiss the employee was fair and the employee’s pregnancy was not relevant.

In this case the Adjudication Officer quoted Section 85A (1) of the Act and also the case of Rotunda Hospital –v- Gleeson DDE003/2000 to be.

“Evidence which in the absence of any contradictory evidence by the employer would lead

to any reasonable person to conclude that discrimination has probably occurred”.

The Adjudication Officer pointed out that the case of Wrights Howth Sea Food Bars Limited –v- Murat EDA1728 was not quoted. That was a case where the respondent argued that the complainant had been dismissed because of her incompetence and not because she was pregnant.

The Labour Court in that case found that the complainant who had been on probation when she was dismissed was not provided with adequate training when she began the work and found that prior to notifying the respondent of her pregnancy no performance issues had been brought to her attention.

Furthermore, the Labour Court determined that the decision to dismiss and the manner of its implementation were found by the Court to have been seriously lacking in adherence to its own disciplinary procedures.

Also, the Court noted that contrary to Article 10 of the Directive being 92/85/EEC on the introduction of measures to encourage improvement in the Safety and Health of Pregnant Workers no substantial grounds for the dismissal were provided by the respondent in writing.

Mitigation of Loss

The Complainant made a number of formal and informal attempts to find alternative employment. The Complainant registered with various recruitment agencies and made up to fifteen applications for alternative roles, to mitigate her loss.

The Complainant commenced employment with VFXAI as Part-time Manager in Oct  2022, with a salary of €14,600. We refer to the decision in Mullen v BCon Communications Ltd. (DEC-E2014-007):

“In assessing the appropriate remedy, this Tribunal is required to follow the judgement of the European Court of Justice (as it then was) in Von Colson v Land Nordrhein-Westfalen by ensuring that the sanction for breaches of Community rights must be effective, proportionate and dissuasive. The complainant was subjected to a range of unlawful treatment and comments which intensified after she informed the respondent of her pregnancy in November 2009. When she attempted to exercise her statutory rights and return to work at the end of her maternity leave her employer made it particularly difficult for her, misrepresented the true position to her by informing her that her role no longer existed when it clearly did and using that scenario as a background, offered her alternative employment which I am satisfied amounted to a demotion. Ultimately, having made it impossible for the complainant to proceed any further it dismissed her. I am satisfied that the redress awarded should reflect all of these factors and I therefore order, in accordance with my powers under section 82(1) of the Acts, that the respondent pay the complainant the sum of €80,000 by way of compensation for the distress suffered by her as a consequence of the discrimination. This compensation does not contain any element of remuneration and is therefore not subject to PAYE/PRSI.”

We contend that the distress suffered by the Complainant in this matter is comparable in nature and ask that the Adjudication Officer be mindful of this precedent.

Therespondentis a televisionand video productioncompany  set up approximatelyten years ago by its directors, Marc Dillon (MD) andRobinMurray, CreativeDirector.

The company currently has fourteen staff members, and it creates video content for major brands. It has a sister company, Appetite Media, which has 4 employees, situate at the same premises and with the same Directors.

While the directors are the senior managers , there is also a "Head of Client Services’, Amy O'Connor who has been in the position  for five years and who has assisted the directors in building up the business.

It was to address her heavy workload being that the position of Senior Producer was advertised and recruited. It was anticipated that this new role, while reporting to the MD, would work closely with Ms. O'Connor. Then she, after successfully winning new business/contracts, could pass this to the Senior Producer for the next stage of the works although Ms. O'Connor would continue to have a role.

The complainant was appointed to the Senior Producer role.

Before her appointment she advised the companythat she was twelve weeks pregnant and wanted to put the respondentonnoticeof this. Herepliedthathewasdelightedforher ashe himselfwas a fathertoyoung children.

He stated that in line with his original confirmation, he still wished to have a chat with her about the role and this was set up. Following that conversation, she was formally offered the complainant the job. Of note is that, while it was company policy to only pay during maternity leave to employees with over two years’ service, this service requirement was waived for the complainant as part of the offer.

The complainant accepted the position and commenced the role on October 15th  2021.

Issues arose quite quickly following her appointment.

Around the end of her first week, she emailed Ms. O'Connor, and stated "I will manage all the clients now and you can do what you do, go and bring clients to lunch and try and secure new business. I am going to loop you out of emails as that is just going to be a lot of noise for you."

Ms. O'Connor insisted that she not be "looped out" as she gained new business through repeat clients and on November 1st, 2021, she asked the directors to inform the complainant of the outline of her role and that she was still a key contact for clients.

In December 2021, Ms. O'Connor noted that the complainant was continually booking in diary meetings for others, and she was asked to call the person in advance of placing a diary meeting to give them a chance to ascertain if a meeting was necessary.

On the January 10th, 2022, Ms. O' Connor spoke with the complainant prior to a management meeting and explained that not all the details she sought for initial booking forms was necessary at the early stage and that seeking too much information could risk losing the client.

Ms. O'Connor confirmed this position  with the directors at a subsequent meeting, but despite this the complainant again raised the issue of more information on the booking form and had to be told again that this was not necessary.

Ms. O'Connor continued to orally raise issues she was having with the complainant to the Directors related the manner in which she communicated with her and with clients. She informed the Directors that she felt undermined and not listened to by the complainant and that in fact, her workload had not been reduced due to the manner in which the complainant operated.

Initially, the directors asked Ms. O'Connor to see if matters could be worked out between the parties and asked that Ms. O'Connor discuss these issues with the complainant.

On January 28th, Ms. O'Connor again emailed the directors about ongoing issues and attempted to suggest a mechanism of workflow going forward. A copy of this email was submitted.

Ms. O’Connor again spoke with the complainant around February 2022 and informed her that she felt undermined and raised problems about her communication. The complainant said she did not intend this, but nothing changed. 

Despite Ms. O'Connor's attempt to deal with this informally, things did not improve. She felt further undermined by the complainant who would criticise her work in team meetings/calls or allege defects in her dealing of administration. Indeed, she was informed by one client that they felt the complainant was "quite scary" and felt the need to carry out her requests immediately due to her demeanor.

Ms. O'Connor felt the need to seek professional counselling on how to deal with her colleague as her interactions were having an adverse effect on her health.

In March 2022, as Ms. O'Connor felt that the Complainant's conduct had not improved, she emailed the directors about the situation. Remote meetings followed and the directors noted the impactthecomplainantwashavingonotheremployees.

A face-to-face meeting was arranged between the directors and Ms. O'Connor who re-iterated her concerns and stated that she was considering resigning.

At this stage, the complainant was in her fifth month of employment and the directors were aware that she was still on probation and having considered matters, decided that she was not a good fit for the company.

The had a remote meeting and informed her that her employment was to be terminated in line with the probation clause in her contract. It is accepted that nothing was in writing and indeed, no formal accusation put to her, however, the Directors were of the view that as matters had not improved in the last few months, that it was best to end the relationship while still in the probationary period.

It is notdisputed that thecomplainantwasdue totake maternity leave in the next month, however, this had no bearing on the decision to terminate.

As already set out, the respondent was aware of the pregnancy at the start of employment and had voluntarily agreed to waive a service requirement in order that the complainant could avail of paid leave. Additionally, at the termination meeting, the directors offered to discharge an amount equivalent to the paid maternity leave by way of an ex-gratia sum, however, this was declined.

During her employment the respondent, happily accommodated all requests relating to her pregnancy or her extended family circumstances.

Shewouldnothavebeenthefirstemployeeto availofmaternityleave withthe respondent

Further, the respondent takes its duty to employees seriously and has initiated work place wellbeing measures, team building events and arranged small gatherings/parties when an employee is leaving for maternity leave.

A probationary period, by its very nature, is to assess the suitability of an employee for a role.

It transpired that the complainant’s style of communication did not work with the person fulfilling the role to which her role closely aligned and indeed, clients and other employees had made comments about her character.

It is solely due to this and these exceptional circumstances, that the directors of the Respondent made the decision to terminate the complainant’s employment and her pregnancy or impending maternity leave was not a factor in that decision.

Evidence of Amy O’Connor

The witness give evidence on oath.

She stated that she started work with the respondent in 2016 but since then the number of employees had  doubled from seven to fourteen. She suggested recruiting a senior producer to assist with her workload and was directly involved in the recruitment.

In response to a question, she stated that becoming aware of the complainant's pregnancy had no bearing on the selection decision. In fact, she had recently returned from maternity leave herself.

She stated that the complainant made her feel undermined and that her opinion was undervalued and dismissed.

She dreaded handing over things to the complainant because of the tone of voice she would use. This was done in front of colleagues. The complainant was not aware of her impact of her tone, but she (the witness) had to seek assistance. The complainant was creating unnecessary levels of administration and was seeking to install a very formal procedure for an office handover.

The reason for the complainant's recruitment was that she would reduce workload and not add to it.

The witness said she raised this with the directors on numerous occasions. Their response was to express the hope that things would improve and that this would pass.

However, it got to the point where she was not enjoying her job and  met one of the directors to explain how upset she was about the situation. At no stage did the complainant's pregnancy come up in any conversation about her upcoming maternity leave.

In cross-examination the witness repeated that she had no difficulty sharing with the complainant and when asked if the complainant ‘rubbed her the wrong way’ she stated that the complainant upset and embarrassed her.

She had one discussion with the complainant and also raised it with the directors, but it got to the point where she was thinking of resigning. Indeed, she confirmed that on March 2nd that she could no longer work with the complainant.

She also stated that no action was taken by her to resolve issues with the complainant.

When asked whether she accepted the complainant statement that she did not intend to undermine her at face value she said she did, but this did not result in a change.

Marc Dillon gave evidence on oath

He stated that he was one of the founders of the company ten or eleven years ago and now had twelve employees: both men and women.

In respect of the recruitment process which resulted in the employment of the complainant he said there had been numerous applications and a short list was created. The notification by the complainant of a pregnancy was of no relevance. It was appreciated that she told them but in fact they were recruiting someone for the long term.

Both he and the company are pro family, and the pregnancy was never an issue. This is specifically evidenced by the fact that they waived the two-year eligibility requirement for payment during maternity leave.

He stated that issues arose early on, especially as Ms. O’Connor felt the complainant was encroaching on her role but she did not communicate these concerns directly.

What changed the situation was the feedback in relation to the difficult working relationship between the complainant and O’Connor. It was clear they were not achieving a modus vivendi.

At his meeting with Ms. O’Connor on March 3rd, he could see it was taking a serious toll on her to the extent that he followed up the meeting with a visit to her home. He said he could see her being knocked down ‘brick by brick’ and losing her self-esteem.

It was clear that Miss O'Connor was going to leave the company and he had further concerned that there would be a collateral impact on other employees throughout the company were this to happen.

Robin Murray gave evidence on affirmation

The witness works as Creative Director for the respondent. He had previously worked with the complainant and thought she was a good fit for the company. There were other candidates, but she was the preferred one and she said she was looking for a forever home. He stated that her pregnancy was not an issue.

He became aware that enthusiasm for the complainant in the wider team was lukewarm. When Miss O’Connor approached him with her concerns, he encouraged her to discuss it directly with the complainant. He wanted the relationship to work but it became clear that a number of employees in the company did not like her to complain and spoke to them, but he accepts he did not put this formally to the complainant. Regarding the decision to terminate, this followed a meeting with Miss O’Connor which he described as the worst day of his working life.

He said that the offer made by way of a settlement to the complainant was an attempt to be fair to her and to assist her through her period of maternity leave.

In response to questions from the complainant’s counsel he confirmed that he had a follow up meeting with Ms. O’Connor in her home. Following this his decision was to get HR advice as he had reached the conclusion that the complainant could not work with the rest of the team but asked whether this in any way arose from pregnancy, he replied “absolutely not”.

He said that there was a lack of awareness by the complainant of the impact of her style and that it was unlikely that this would improve if she remained.

Legal submissions

The test as set out in Section 85A of the EEA,provides that it is for the complainant to establish facts, from which it may be presumed, that discrimination has occurred, see Southern Health Board v Mitchell 2001 ELR201.

The Labour Court expanded on the Test in the HSE Northeastern Region v Sheridan EDA0820, wherein the court declared:

"The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.

"It is only if those primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment."

It is a prerequisite therefore that there are some primary facts upon which the complainant must rely upon to ground her allegation of discrimination. These cannot be mere speculation or an assertion unsupported by evidence.

The Labour Court further elaborated on the interpretation of Section 85A (I) of the EEA in Melbury v Valpeters EDA/0917, wherein it is stated that this section: "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".

In Mulcahy v Minister for Justice, Equality and Law Reform [2002] ELR 12, Sullivan J took the view that the mere fact of pregnancy or the existence of maternity leave is not sufficient to shift the burden of proof to an employer where a woman is dismissed or treated less favourably during her pregnancy or maternity leave. “Something else is required".

2.1          Section 6 of The Employment Equality Acts states:

6.-(1) Forthe 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,

(v)     a person who is associated with another person-is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(vi)   similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.]

(2)     As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are-

(a) that one is a woman and the other is a man (in this Act referred to as "the gender ground''),

In the Labour Court case of A Catering Business v A Worker EDA 1520,the Court held

 "Discrimination occurs where a person is treated less favourably on any of the grounds specified in subsection (2). That wording mandates an enquiry as to the reason for the impugned treatment. Consequently, the Court must decide whether the reason why the Complainant was dismissed related to her pregnancy or whether it related to the Respondents desire to reduce costs by carrying on business with fewer employees."

The complainant is not able to shift the burden of proof to the respondent which was at all times aware of the  pregnancy and not only confirmed her position but amended its Maternity Policy in order to allow the Complainant to avail of paid leave.

There was no legal obligation to do this. Additionally, there were cogent reasons for terminating the complainant's employment that did not relate to her pregnancy and it is due to these and on foot of the fact that she was still within her probationary period, that her employment was terminated.

In the case of An Employee v A Wholesale/Retail Company ADJ-00012521, although taken under the Unfair Dismissal legislation, the Adjudicator, found that although the Complainant had been dismissed while pregnant,

 "The Respondent provided credible evidence in relation to what they contended was the actual reason for her dismissal, which was by way of termination of her probation. "

The facts are well set out above in the submissions and confirmed in the evidence of witnesses.

There is no significant conflict on the facts.

There are a number of key questions to be addressed.

Has the complainant established a prima facie case? Without further ado, I find that she has.

Then the substantive matter is whether the termination of her employment can be attributed to her pregnancy or whether there were other ‘substantial’ grounds that justify her dismissal. Related to this is the requirement that such grounds be given to her in writing, as required in the various measures referred to above in the complainant‘s submission, specifically where it states.

‘It is not sufficient for an employer to simply aver that a dismissal during pregnancy was for other unrelated reasons. Some persuasive evidence of an unrelated justification for the dismissal is required. In the case of Assico Assembly Limited v Corcoran (EED 033/2003), the Labour Court held:

“Where the employee is dismissed while pregnant or on maternity leave, both legislation and case law states that the employer must show that the dismissal was on exceptional grounds not associated with her pregnancy and such grounds, in the case of dismissal, as a matter of law….should be set out in writing.”

Working backwards from the termination itself the complainant was given a number of reasons for the decision, (but not in writing, to which I return below).

These were both vague, and confusing. There were references to her ‘style’, ‘synergy’, to her not being a ‘right fit’, all of which were delivered at the same time as she was being told that she had not actually done anything wrong, and the respondent was willing to both give her a glowing reference and pay her a significant settlement.

The doubt created by this easily grounds my conclusion that there is a prima facie case.

Such imprecision of language can often be used to provide the cover needed to mask acts of discrimination. Where discrimination is being practised a perpetrator is unlikely to tell the victim openly that is what is happening and will normally resort to such euphemisms.

The critical question therefore is, is that what happened in this case? Was the complainant’s employment terminated as a result of her pregnancy or, in order for it to be lawful, for some other substantial reason?

Specifically, was the language used actually grounded in something real and, for example only fell to be used because the directors could not face up to being frank with the complainant and find better chosen words to do communicate the hard truth as it actually was?

There are a number of pieces of evidence relevant to reaching a conclusion on this.

The most obvious is (and it is a distinguishing feature of the case) that not only did the respondent proceed to employ the complainant knowing that she was pregnant, but it waived the two-year eligibility period of service to qualify for paid maternity leave.

This fact, and the persuasive evidence of both directors at the hearing as to their attitude does not suggest that the respondent was anything other than positive about a long-term employment relationship with the complainant, despite her pregnancy and her imminent maternity leave break, both of which were known and accepted.

The complainant’s response to a question in her oral evidence as to why the respondent terminated her employment was that the sudden decision to terminate her employment was triggered by the costs of having to pay her during her leave and the disruption her absence would cause is not convincing.

As just noted, these were both known to the respondent well in advance and they had entered into the commitment willingly.

This then leads to what may have been behind the language used by the directors, imprecise as it was. Did something of substance lie behind what I have suggested might otherwise be the self-serving rhetoric of the perpetrator of discrimination?

The relationship between the complainant and Ms Amy O’Connor is critical here.

From Ms O’Connor’s evidence above it is quite clear that there were relatively serious inter-personal difficulties between her and the complainant (or at least from Ms O’Connor’s side), beginning around the first week of the latter’s employment with the ‘loop you out’ comment. It was not a good start.

Whatever the complainant’s intentions may have been, (and overlooking for now that nothing was done about this until March) her actions caused a great deal of distress for Ms O’Connor, which were very apparent as she gave her evidence. There are further incidents referred to in the submission above.

Her evidence was that the complainant made her feel undermined and that her opinion was undervalued and dismissed. She was upset by the complainant’s tone of voice and how she was spoken to in front of co-workers, that the complainant appeared not to understand the modus operandi of a small company etc.

She raised this with the directors initially in November (this is only a few weeks after the complainant commenced her employment with the respondent) and on a number of occasions, but their attitude appeared to be that they hoped things would improve with the passage of time, or simply go away.

They did not go away, and according to her evidence Ms O’Connor had to avail of counselling to help her cope with the complainant. Things got to the point where she was not enjoying her job to the extent that, in March, she was considering resigning from the company.

It was when she made the directors aware of this that they appear to have decided that action was eventually required and this led, in short order to the termination of the complainant’s employment. In his evidence one of the directors said that he had similar feedback about the complainant from other employees, and he feared that if the complainant remained others would quit their employment.

The complainant was entirely unaware of any of this.

Apart from one informal conversation with Ms O’Connor nothing was brought to her attention either formally or informally by the directors. The complainant was on probation but instead of the normal performance monitoring which takes place during probation this was replaced by something whose purpose, and certainly whose outcome is not clear.

Either way she was not aware of the turbulence in the relationship with Ms O’Connor

Ms O’Connor is not to be faulted in this. Although she is a fairly senior manager in what is a small company it appears she was ‘suffering in silence’ as her pleas for support fell on deaf ears. Likewise, the complainant had a right to be made aware of any alleged deficits in either her general performance or in her dealings with Ms O’Connor and make such corrections as may have been possible, especially as she was on probation.

These are serious criticisms of the company’s directors whose complacency in the face of what was a serious problem between two of its senior employees is unacceptable and it was left to fester and was finally confronted only when it threatened to explode in their faces.

However, the issue I am asked to decide is whether the facts as set out constitute the ‘substantial’ grounds for termination of the employment sufficient to displace the presumption that it was because of the complainant’s pregnancy.

There are two relevant considerations.

The first is the clear willingness of the respondent to employ the complainant in the full knowledge of her pregnancy, and the waiver of the service requirement for payment during her leave.

This was not a case of terminating the employment on becoming aware of the pregnancy. The respondent was well aware of the pregnancy and the evidence is that not only did this not deter it from employing the complainant, but it was also sufficiently anxious to do so that it waived its service requirement for payment during her maternity leave.

There was no new information related to her pregnancy or imminent maternity leave that caused then to re-think their previous position and to suddenly terminate the employment for a reason related to the pregnancy.

The second is that despite the appalling handling of the matter procedurally, (including in breach of its own procedures) the evidence of Ms O’Connor at the hearing and the threat of her resignation can be said to represent grounds to consider the termination of the employment, at least sufficient to displace any presumption that it was on the grounds of the pregnancy.

The respondent’s policy on probation strangely refers only to ‘disciplinary issues’ being discussed with an employee during probation. It is odd that it does not refer to performance issues. In the normal course of a probation, it is more likely that performance issues would have to be discussed as this is the purpose of probation.

In any event, simple courtesy to an employee would suggest that they should be.

But there is no evidence that this was done, either during or at the termination of the employment. Hence, the complainant was given no intelligible information that would comply either with this broader requirement of probation or the more specific, and more onerous requirement of equality law at the point of terminating a pregnant worker’s employment.

The second element of the obligation to show ‘substantial’ grounds is that these grounds be given in writing. This was not done.

The failure of the respondent to articulate these concerns to the complainant was an abdication of its general management responsibility, as much as its failure to state them in writing was a breach of its legal responsibility.

The precise significance of the requirement to do so should not be underestimated. It is not a minor administrative requirement or a matter of record keeping, such as might apply in the disciplinary warnings framework.

The complainant refers in her submission to the case of the case of Corcoran –v- Assico Assembly Limited EED033/2003 where the Labour Court said that the case law of the European Court of Justice and Directive 92/85 requires an employer to set out “duly substantiated grounds in writing, when a pregnant employee is dismissed’.

The word ‘substantiated’ is important here. Thus, a statement outlining the grounds containing the sort of vague clichés used by the respondent at its final meeting with the complainant would be unlikely to comply with this requirement that an employee be given.

They may suffice in general in relation to probation (although I do not think they should) but most definitely not in the case of a pregnant employee.

One obvious purpose of this requirement is to ensure that an employer contemplating the termination of a pregnant employee will think hard about whether the termination can be ‘duly substantiated’ in writing before doing so. In that sense, it is in the nature of a preventive measure to restrain the termination of a pregnant employee on the grounds only that she is pregnant.

For those reasons I find that the failure to provide the written statement represents a serious breach of the Act and this is reflected in my award below.

In summary, I find that the complainant’s employment was not terminated on the grounds of her pregnancy and this aspect of the complaint is not upheld. There were other substantial grounds for the termination of her employment as set out above.

I find that the respondent failed to comply with the requirement to notify the complainant in writing of the grounds for the termination of her employment.

I therefore uphold the complaint in that respect and award the complainant €10,000 for the breach of her rights under the Act in that respect.

I uphold complaint CA-00051202-001 in respect of the failure to notify the complainant in writing of the grounds for the termination of her employment and award her €10,000.

Termination on pregnancy, duty to give reasons in writing.