Complainant

Respondent

Parties

Niamh  Clinton

Masterchefs Hospitality Limited Masterchefs

Representatives

Andrea Callan BL instructed by Larkin Tynan Nohilly Solicitors

Raymond Mulcahy, Human Resource Consultant

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00048077-001

10/01/2022

The Complainant commenced her employment with the Respondent on 30 June 2021 as a Director of Sales. Her employment terminated on 3 December 2021.

On 10 January 2022 the Complainant referred her complaints to the Director General of the WRC under the Unfair Dismissals Act, 1997 alleging that she was unfairly dismissed for pregnancy or connected matters, and under the Employment Equality Act, 1998 alleging that she was discriminated against by reason of her gender, and that she was dismissed for discriminatory reasons.

On 13 January 2022, the WRC acknowledged the complaints and informed the Complainant’s solicitor that in accordance with Section 101(4)(a) of the Employment Equality Act 1998, the complaint under the Employment Equality Act 1998 will be deemed to have been withdrawn unless, not later than 41 days from the date of the letter, the Complainant withdraws the claim under the Unfair Dismissals Act 1977. The Complainant’s solicitor was requested to advise the Commission in writing not later than 41 days of the date of the letter if the Complainant wished to withdraw the claim under the Unfair Dismissal Act 1977.

There was no response from the Complainant’s solicitor to that request, therefore, the complaint of dismissal under the Employment Equality Act 1998 was deemed to have been withdrawn and the Commission made arrangements to process the complaint under the Unfair Dismissals Act 1977.

The Respondent’s representative submits as follows.

Background

Masterchefs Hospitality has over twenty years’ experience and are Ireland’s leading corporate and event caterers specialising in the management and delivery of unique hospitality experiences. Before the first restrictions were implemented on 12 March 2020, the company had 450 employees in full/part-time positions and had provided catering services to multiple locations across the west coast of Ireland. The Respondent operated catering facilities in several third-level colleges, sports stadiums, and offices across the region. These client sites were the first to close in March 2020 and did not become fully operational until February 2022. This resulted in 400 staff going on either the PUP scheme, seeking alternative employment or returning to their native country and the company experienced a loss of earnings of 80% of turnover during this period. Like other hospitality businesses, the company went through an unprecedented period in which its business was highly impacted due to the number of infections in the community and government restrictions. As its main primary business was outsourced catering, its business was heavily reliant on third-party host sites, which were closed due to the restrictions.

As the company monitored the vaccination rollout in early 2021, it was anticipated that as people got vaccinated it would allow spectators to return to sporting events and other events that required catering services would be allowed to open. Based on this information, the Management team planned for a return to the event catering sector and began to restructure the business in preparedness for this return.

It was anticipated that there would be demand for corporate catering events as companies emerged from lockdown in 2021 and a new position of Director of Sales was created in the company. This role was focused on the marketing and generation of income through new opportunities at a national and international level.

On 15 May 2021, the Complainant applied for the position of Director of Sales with the Respondent. In her application, the Complainant noted that “this was my opportunity to get back into the hospitality and event industry” and “Although this maybe challenging in the current climate and the uncertainty of the future, I think this application comes on good faith of what the future holds for all of us”. The Complainant’s application letter was exhibited at the adjudication hearing.

On 25 May 2021, as part of the interview process, the Complainant presented to the Management team a sales and marketing strategy plan, that she would be implementing if she was successful in her application. In summary, the Complainant’s presentation to Management was to demonstrate her ability in generating new sales and income in her role as Director of Sales. “Develop and Implement Sales and Marketing Strategies designed to target specific markets thus increasing sales in all of these markets for [named client]. Produce and implement an action plan and CRM log for all sales and marketing activity on a weekly and monthly basis”. The Complainant’s presentation was exhibited at the adjudication hearing.

Having completed the interview process, the Complainant was offered terms and conditions of employment, which she signed on 1 June 2021. Signed terms and conditions were exhibited at the hearing.

At the time of the Complainant commencing her employment the company also had in its employment two Sales and Marketing Executives whose responsibilities were for existing and new clients for other catering services provided by the Respondent.

The Complainant took up her position on 30 June 2021 and her place of work was her home for 2 days per week and the Respondent’s Head Office 3 days per week. The Complainant was aware that there was a trial period of three months and a six-month probationary period, which was noted in her terms and conditions of employment.

It was evident in the earlier stages of her employment that the Complainant was departing from her brief and in an email to the Complainant dated 2 August 2021, the Respondent instructed the Complainant to “focus on sales, strategy, schedule, offer, packages etc”. An email from Mr O’Sullivan to the Complainant of  2 August 2021 was exhibited at the hearing.

It was evident that in the preceding month of September, the Complainant’s working time was solely focused on the inventiveness of the role, rather than on implementing the sales and marketing strategies outlined in her presentation.  In that regard, the Respondent relies on an email from the Complainant to Mr O’Sullivan of 3 September 2021.

On 16 September 2021 in an email to the Complainant (exhibited at the hearing), it is evident that the Respondent was communicating to her the importance of generating new sales and again reminded the Complainant that “As per previous conversation your sales target for the first 6 months is 250k. This is to be new business generated, not the conversion of organic enquiries coming into the business naturally.”

On 16 September 2021 in a further email to the Complainant (exhibited at the hearing), it is evident that the Respondent needed the Complainant to focus on the sales strategy and in the email, Mr O’Sullivan instructed that: “We need a very clear picture of where we’re going”.

On 17 September 2021 in a further email to the Complainant (exhibited at the hearing), it is evident that the Respondent had concerns relating to a corporate event that the Complainant was planning, and in the email, Mr O’Sullivan stated “This is an extremely difficult & expensive menu to serve for big numbers. By the time there’s an order taken for such a choice & communicated to the kitchen it’s going to amount to very slow service.”.

On 4 October 2021 in a further email to the Complainant (exhibited at the hearing), it is evident that the Respondent had concerns relating to costing and the Complainant’s failure to consider all factors that contribute to costs when delivering a quote. In the email, Mr O’Sullivan noted “Bear in mind we, unlike a hotel have to bring staff in specially to do this. The cost structure is completely different. All these factors need to be considered when quoting”.

On 15 October 2021 in an email to the Complainant (exhibited at the hearing), it is evident that the Respondent was engaging with the Complainant on generating new sales and again requested data on what she had generated. In a follow-up email to a previous query, Mr O’Sullivan stated: “The attached is a list of events he has been communicating with to process enquiries that are coming in. These are organic sales & that’s [named employees’] job. However what I’m asking relates to your job. What proactive sales activities you are involved in to drive NEW business? What companies are you talking to, what is their response, what business leads have you generated?”

It was evident in the response to the Respondent’s email, that the Complainant’s response demonstrated that all her working time continued to focus on the organic business that was not related to her role and that the Respondent again highlighted in an email, in which he stated “This is all positive, however 90% of your focus needs to be generating sales for [named client]. That’s where my focus is & where we can have the biggest impact”.

On 28 October 2021 in an email to the Complainant (exhibited at the hearing), the CEO highlighted his annoyance when it emerged that a quote provided for an event was looking at being a loss-making event. It was evident in the response to the Respondent’s email, that the Complainant failed to take note that the event was within her responsibilities and in an email, Mr O’Sullivan noted “This a typical “the dog ate my homework stuff! I’m very concerned at the lack of commercial acumen being used when quoting. At what point do you say “no” we cannot take this business? This is loss making & you don’t have to be an accountant to see why. Basic maths need to be used in advance of issuing any future quotes.”

On 3 November 2021, the Respondent arranged to meet with the Complainant to discuss the concerns he had in relation to the sales and to seek an update on the financial target of 250k that was to be achieved within the first six months. In the meeting, they discussed the lack of sales generated and the Complainant acknowledged that zero income had been generated since she had started in the role. The Respondent does confirm that at the end of the meeting, the Complainant informed him that she was thirty weeks pregnant.

On 9 November 2021, the Respondent wrote to the Complainant documenting his concerns regarding the targets which have not been achieved, reminding the Complainant that she was on a probationary period and confirming his confidence that she will meet the required standard (A letter from Mr O’Sullivan to the Complainant of 9 November 2021 was exhibited at the hearing).

On 16 November 2021, the Complainant notified the Respondent of further booking cancellations and in her email (exhibited at the hearing) stated “ I am aware that time is not on our side and even more so apparent since I will be departing unexpectedly on maternity leave as discussed on Thursday 4th November, but the current climate and hospitality guidelines imposed by the Irish Government are not helping with this and our current event calendar for remainder 2021 and the event cancellation levels we are experiencing are also not contributing to our cause in this pandemic.”

On 19 November 2021, the Complainant met with the Respondent, where she was informed that due to the impact of the current Covid restrictions and significant Christmas cancellations the company was not able to sustain her employment and that the current trends indicated that this would continue into 2022. The Complainant’s employment ended on 3 December 2021 after 22 weeks and 2 days. A copy of the Termination Letter was exhibited at the hearing.

Arguments

The Complainant was fully aware that the role of Director of Sales was a new position identified for the development of event catering for the named client. The key goal of the role was to maximise sales and revenue generation for the company. It was evident from the Complainant’s presentation that she had a clear understanding of the role requirements and its objectives. The Complainant presented to management her strategic plan in “Develop and Implement Sales and Marketing Strategies designed to target specific markets thus increasing sales in all of these markets for [named client]”.

The Complainant was fully aware that she would be on a trial period for 3 months, followed by a probation period of six months. It was further stated, inter alia, in this documentation, that the Respondent reserves the right to "terminate employment at its discretion during this probationary period”. “You are employed on a 3-month trial and following successful completion of your trial your employment is subject to a subsequent 6-month probationary period. During which time your employment may be terminated without notice. The company reserves the right to extend your probationary period if deemed necessary, but it will not in any case exceed 10 months in combination with the trial period. Termination of your employment at any time during or at the end of the probationary period is at the discretion of the company.”

The Complainant was fully aware of the concerns that the Respondent had with the lack of generation of new business and that this was highlighted in communications to the Complainant between the months of August, September, and October 2021. It is evident in communications from the Respondent highlighting his concerns that the Complainant was focusing on organic sales and that she should be focusing on new business for the named client.

Prior to and following the meeting of the 4 November 2022, the Complainant never challenged the company’s data that the revenue targets were not been achieved. It is evident from the email that the Complainant was aware that the restrictions and the events cancellations were having an impact on revenue in the company. Implementing a wait-and-see approach wasn’t an option that the Respondent could continue with, as throughout the probationary period there had been no return on investment from the role. It is evident based on the communications between the Complainant and the Respondent that the role was not achieving the revenue generation income that both parties knew was required to maintain the role. It is evident that the impact of the public health measures and the failure of the Complainant to generate sales both had an impact on the decision of the Respondent to terminate the contract of employment. The Complainant has never challenged the evidence that the role failed to achieve its objectives and that the Respondent has demonstrated that it had nothing to do with her pregnancy but the sustainability of keeping a role that wasn’t generating any revenue income.

The Complainant’s submission notes that the Respondent was entirely satisfied with the Complainant's performance and that there were no issues regarding her performance or conduct. It is evident throughout the Complainant’s trial and probationary period that the initial sales and marketing strategy plan developed by the Complainant was not achieving its strategic goals and that there was zero revenue being generated.

Over the duration of the contract, the outgoing expenditure for the role of Director of Sales had reached €31,630.00 in gross wages and €3,495 of employer’s contributions. Also €780.80 for healthcare & €2,760.00 for expenses.

The Complainant’s submission indicates that it is custom and practice within the Respondent’s company to pay salary whilst on maternity leave. This is incorrect and the Complainant was aware that she would be entitled to receive maternity pay, whilst on maternity leave. The Respondent’s Maternity Policy and signed Employee Handbook were exhibited at the hearing.

Conclusion

The Complainant’s complaint is solely relying on the meeting of the 4 November 2022, when she informed the Respondent that she was thirty weeks pregnant. The Complainant has disregarded the evidence that over the duration of the seventeen weeks that she had been in the employment of the Respondent, the Complainant’s role failed to generate new sales and achieved zero income. The Complainant has disregarded the evidence that over the duration of the seventeen weeks, she was fully aware of the concerns of the Respondent in which he highlighted the lack of sales and failure to achieve targets. The Complainant has disregarded the evidence that she had acknowledged in communications to the Respondent the impact that the Government restrictions were having on new sales and that bookings were been cancelled.

Section 6(2)(f) of the Unfair Dismissals Acts 1977-2015 provides: “without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal if it results wholly or mainly from…the employee’s pregnancy… or any matters connected therewith”.

It is the Respondent’s case that the Complainant has failed to demonstrate the burden of proof that is required under section 6(2)(f) of the Act that the termination was solely due to the notification of her pregnancy to the Respondent.

In his closing remarks, Mr Mulcahy, on behalf of the Respondent, submitted that the Complainant’s role was a new position, it was clearly identified with the named client. At the time of acceptance, the Complainant acknowledged that it was going to be a challenging role. The Complainant accepted her terms of employment which outlined a probationary period and no payment for maternity leave.

Mr Mulcahy said that there is no evidence to show that the targets were no achievable, therefore, the Complainant accepted that she did not achieve targets.

Mr Mulcahy asserted that the Complainant had two employees and she acknowledged that she did not conduct a PMDS with them. The standard practice in the organisation is that no formal, written PMDS is conducted but it does not mean that they are not done, people sit down and talk.

It was submitted that it is clear that from September 2021 onward the CEO had issues with the Complainant’s performance, she made no financial contribution to the organisation.

Summary of direct evidence and cross-examination of Mr O’Sullivan, the CEO

The CEO said that he set up Masterchefs Munster in 2005. He said that before Covid pandemic the Respondent employed some 400 staff, the number was reduced to 60 during the pandemic. He said that there was a 92% drop in revenue due to Covid, but subsidies and some HSE business kept the company alive.

The CEO said that the Respondent wanted to retain the major clients. He said that, when it became apparent that restrictions would be lifted, a client approached the Respondent to see if it would take over the sales and marketing function. The CEO said that previously he did sales and marketing. There was a marketing manager, but he was let go as nothing happened for 18 months of Covid, so he dealt with all.

The CEO said that he did up the job spec, advertised the position and pre-screened the candidates. There was an interview with the client’s Director. If a candidate was successful at the interview they were asked to prepare a presentation on how would they tackle sales. The CEO and the client’s Director made the decision on the appointment. The CEO said that the role was Sales and Marketing Director for the named client.

The CEO said that the Complainant’s presentation was very good, entirely focused on the named client. The Complainant gave them a feeling that they had the right person.

He said that none of the points were implemented. He asserted that the Complainant had tendency to focus on easy business that came to the Respondent anyway.

The CEO said that the Complainant’s role was a senior position, it was a monumental appointment for him to recruit someone from outside of the organisation as a director.

The CEO said that the office is a small open plan office, with eight staff. He said that there is family type atmosphere, nobody has any fear to come to his office, and the Complainant did so several times a day.

The CEO referred to the Complainant’s acceptance letter and said that the Complainant understood that they were in a volatile market, none of them knew what future entailed. The Complainant knew it was challenging climate.

The CEO said that the agreed target for the Complainant was €250k for six months, she achieved zero. The CEO said that his email of 2 August 2021 shows that he asked the Complainant to focus. The CEO said that in his email of 16 September 2021 he made the point that sales were not generated, he was trying to re-focus the Complainant. He said that the Complainant did not raise the targets as unachievable.

The CEO said that all his attempts to focus the Complainant fell on deaf ears and he was very concerned. The CEO referred to the email of 17 September 2021 and said that the Complainant had no understanding of the flow of service, she quoted without taking the business into consideration.

The CEO referred to the email of 4 October 2021 and said that despite all previous conversation, the Complainant continued to do the same thing, her commercial awareness was not there.

The CEO said  that in his email of 15 October 2021 is clear that there was a problem, there was no business generated. He said that there was obvious deficiency in expertise despite numerous efforts to focus the Complainant.

The CEO discussed two of the Complainant’s proposals, he said one was difficult to do but showed that she was focused. The CEO said that regarding the other one, he told the Complainant many times that he does not want this type of business.

The CEO said that his emails of 28 October 2021 show his frustration. At the time the Complainant was four months in situ but it was increasingly obvious that she was struggling, he was very concerned about her ability to deliver targets.

Regarding the meeting on 4 November 2021, the CEO said that on this occasion the Complainant would have been invited to the meeting. He said that he had serious concerns, at this point the Complainant knew that he was concerned. He said that the Respondent only started working for the named client so needed to deliver some information to the Director notwithstanding Covid and volatile market. The CEO said that the meeting took 15-20 min. He then sent the letter of 9 November 2021 formalising the discussions they had over a few months. The CEO said that the weekly meetings were held anyway. He said that the Complainant did not raise any objections regarding the probationary period or contents of the letter.

The CEO said that the Respondent had a reasonably full calendar for December, five months were spent to build it. However, there was another lockdown announced. He said that the Complainant acknowledged that what was on the books was gone.

The CEO said that as of 25 November 2021 the Respondent spent €30k on the Complainant’s salary. There were also two assistants’ salaries, €25-30k each. There were no sales generated. The CEO believed that nothing was going to happen in the first quarter of 2021.

In cross-examination, the CEO confirmed that the Complainant was hired in June 2021, after a five months lockdown ended (January-May 2021). He agreed that there were ongoing restrictions rolled until the end of the year. However, he said that people wanted to get out, events were taking place. He said that he knows from other businesses that business could have been done but the Respondent had no sales activity. The CEO agreed that sales activity was difficult because of uncertainty e.g., December 2021 cancellations on a short notice. He said that the events cancelled were organic business, not the Complainant’s brief. The CEO agreed that some work was done for the named client, however, he said that all the Complainant’s work should have been there. He said that he sent several emails to bring the Complainant back to the named client.

It was put to the CEO that the commercial reality was that there very limited sales available. He said that business was being done nevertheless. He said that he understood that it was going to be a challenging role. He said that he was very much involved and wanted stuff to go through his desk. He thought that 4 months was sufficient period for embedding and adjustment, to have a strategy and clear goals. It was put to the CEO that he had the strategy the Complainant had prepared at the start, he said that there was no evidence that she worked from it. After 5 months he could not tell the client that it worked. The CEO said that Christmas parties would make money, it was taken away when restrictions were announced on 17 December 2021, it removed the ability to pay the Complainant’s salary.

The CEO said it was a combination of no confidence in the Complainant’s ability to generate sales and the business being wiped out. He said that there was no prospect of paying the Complainant during her maternity, so it did not enter his thought process.

It was put to the CEO that it was convenient to send the Complainant a letter of 9 November 2021 and 10 days later terminate her employment. The Complainant’s representative put it to the CEO that it beggars belief that it had nothing to do with the Complainant telling him about her pregnancy. The CEO said that it would be remiss of him not to document the meeting. He said that 70% of employees are female, the Respondent dealt positively and professionally with pregnant employees before.

The CEO said that last year the Respondent started recruiting to replace the Complainant but did not hire anyone. He said that the named client had now hired a team themselves.

The CEO agreed that some of the Complainant’s strategy was in place, e.g., her digital strategy.

The CEO said that the Respondent does not have a HR department, a cluster of site managers report to the  Operations Director, he reports to the CEO. The Respondents operates a “buddy system” whereby everyone is coached and at the end of the probationary period it is more formal, someone sits down and talks to staff. He said that there are no minutes kept but a report, like his letter to the Complainant of 9 November 2021, would be issued. The CEO said that the Complainant was on a high salary, so no other options were considered. He agreed that there was no formal PIP or a performance review.

The CEO said that he specifically informed the Complainant that her job was at risk on more than one occasions but had no record of same.  He said that between 9 November and 25 November 2021, the Government announced the restrictions to be implemented over Christmas.

The Complainant’s representative in their written submission submits as follows.

The Complainant commenced employment with the Respondent on 30 June 2021 as a Director of Sales reporting to the Company's CEO. The Complainant's Contract of Employment was exhibited at the adjudication hearing.

The Complainant worked efficiently in her role and was not subject to any regular reviews until she informed the Respondent on 4 November 2021 that she was pregnant. Following this she was then subject to "performance reviews". On 8 November 2021 she received a formal letter regarding her performance. She had not been the subject of any such reviews previously. She was then advised that as a result of issues surrounding her performance and Covid and the unprecedented financial impact her employment was to be terminated from 17 December 2021. It is the Complainant's view that that her employment was terminated as a result of her informing the Respondent that she was pregnant. The correspondence between the Respondent and the Complainant dated  9 November 2021, 15 November 2021, 25 November 2021, and prior emails dated 19 October 2021 and 16 September 2021 which indicate no complaints by the Company CEO as against the Complainant were exhibited at the adjudication hearing.  

The Complainant has been in receipt of the standard Social Welfare payment of €240.00 following the birth of her second child on 19 January 2022. Her maternity leave period was from the 19 of January 2022 to the 14 of July 2022. The Complainant started a new position on 2 August 2022 at a salary of €55,000.00 per annum gross. Notwithstanding the fact that there is no mention in her Contract of Employment in respect of payment whilst on maternity leave, it is understood that it is the custom and practice within the Respondent's company to pay the salary whilst employees are on maternity leave. A pregnant employee is given extra protection under the Unfair Dismissals Act and that protection is applicable irrespective of the duration of their employment. The Complainant can prove that this dismissal was wholly or mainly due to the pregnancy.

The Respondent is obliged to follow robust fair procedures when dismissing such an employee. The Complainant relies on the cases Trailer Care Holdings Limited V. Deborah Healy (EDA128), McGuirk V. Irish Garden Publisher Limited and decision ADJ-00017826.

It is the Complainant’s case that the dismissal resulted wholly from her pregnancy thereby this claim falls under Section 6(2)(f) of the Unfair Dismissals Act, 1997. As the dismissal was as a result of her pregnancy the Complainant is exempted from the requirement to have one year's continuous service with her employer.

At the adjudication hearing, Ms Callan BL said that the Complainant was hired on 30 June 2021, still in the middle of Covid-19. The Complainant presented a detailed strategy, including the digital strategy the Respondent is benefiting from now. The CEO undertook the role previously, he understood the challenges. The Complainant updated that CEO on a weekly basis, she would also see him when in the office. Ms Callan said that the emails exhibited show that the CEO was not shy in pointing out issues but nowhere in the emails it is raised that the contract with the named client is an issue. The emails show some frustration by the CEO but they do not say that the Complainant’s job is in jeopardy. There is no record, minutes of meetings, etc. to show that her performance was an issue, that she was told that her job is at risk. The Respondent cherry picked emails post-fact to fit its narrative. The Complainant’s trial period ended at the end of September 2021, this was the right time to put a progress plain in place.

Ms Callan said that there are no minutes of the meeting on 4 November 2021. The Complainant is of the view that it was one of the day-to-day conversations at the end of which she informed the Respondent of her pregnancy. Thereafter, she received a letter informing her that she was subject to a more rigorous performance review. In the letter of 25 November 2021, the Respondent refers to a meeting of 19 November 2021. However, there are no minutes or record of same. There is no evidence that the Complainant was offered any alternatives. Ms Callan submits that it is wholly unbelievable that following the letter of 9 November 2021, not even two weeks passed to check if the Complainant met her targets. Ms Callan submits that the CEO found out on 4 November 2021 that the Complainant was pregnant and decided to have the probation applied retrospectively. There was no evidence to show that there was any analysis to show that the absence of the Complainant’s salary would make any difference to the survival of the company. The only logical conclusion is that she was dismissed because of her pregnancy.

Summary of direct evidence and cross-examination of the Complainant

The Complainant outlined her education and qualifications. She said that she saw the description of the role in the Respondent t’s organisation she thought it was exciting, she thought she was suitable and it was a good match. 

The Complainant said that once the restrictions were eased, the Respondent started to plan how the future would affect the business. The Complainant said that the Respondent provides catering to a variety of clients from high profile ones, school, hospitals, to children’s discos. The Complainant was engaged with a number of clients including involvement regarding the reopening strategy for the named client.

The Complainant said that responsibilities were given to her in line with the future strategy. In the first few months she focused on preparing the business for reopening and two sales executives were hired. The Complainant was responsible for the team and recruitment. The Complainant’s understanding was that she was to build the team, develop a framework to going forward. She built and designed the whole property management system and menus system to allow the business to be fully functional when reopened.

The Complainant said that it was not her understanding that she was to focus on one client. She was to design the website, she had many responsibilities across a number of areas. She said that the client reopened in a limited capacity, then level 5 lockdown was announced. The Respondent has just taken over the sales and strategy aspect of the client, as previously it had managed only food and bar.

The Complainant worked 3 days from home and 2 days in Limerick. She thought that the team did not have the business acumen, so she travelled to Limerick on a weekly basis.

The Complainant further said that every Friday she submitted a report on her activities to the CEO. It was not requested of her; she was being proactive. The Complainant said that the CEO very infrequently replied to her Friday emails. She said that they had a good relationship, had chats, and she provided him with an ongoing report.

The Complainant said that she was not notified of any performance issues. Regarding the email of 3 September 2021, she said that it was a typical Friday email she sent to the CEO. Regarding the email of 17 September 2021, the Complainant said that there was an inquiry in relation to a 350 people Christmas party. The menu was designed by the Head Chef who had been there for a number of years, he gave it to the Complainant who put it to the client.

In relation to the email of 15 October 2021, the Complainant said that she prepared a detailed reply. She said that wedding packages were done on an individual basis, a deposit was required so it generated immediate cashflow.

In relation to the email of 19 October 2019, the Complainant said that she was undertaking a review of the website and needed a photo of the client’s premises. The Complainant said that she was not focused on the named client only, it was part of her functions.

Regarding the email of 28 October 2021, the Complainant said that there was a government-imposed requirement to have a person checking Covid vaccinations. The Complainant said that the booking was taken by one of the junior executives. The Complainant agreed that this showed a lack of business acumen. She said that she had a number of bookings for the named client and nothing was raised other than this one which was taken by one of the junior executives.

The Complainant said that the meeting on 4 November 2019 with the CEO was a general unscheduled catch up, not in relation to anything in particular. They talked about government restrictions, going back to level 5 lockdown. The Complainant said that she informed Ms O’Sullivan that she was 30 weeks pregnant and would take maternity leave from 29 January 2020. It was the first time she informed him.

The Complainant said that her probationary period should have started on 30 September 2019, not 9 November, and expired at the end of March 2020. The letter of 9 November 2021 was the first time her ability to deliver arose, it was not raised with her at the meeting on 4 November 2019. The letter was not a follow-up from the meeting. The letter of 9 November 2019 was the first time that her performance was mentioned. The Complainant said that the meeting on 19 November 2019 was unscheduled, and she was let go.

The Complainant said that prior to informing Mr O’Sullivan of her pregnancy there were no issues raised regarding her long-term employment with the Respondent. She was engaged with a variety of projects. She was providing Mr O’Sullivan with a report every week. If he was unhappy with anything, he would let her know, as was clear from his emails. Some weeks nothing was raised, other weeks something was.

In relation to the discretionary payment, the Complainant said that it was to cover her holidays.

In cross-examination, the Complainant was asked to describe her presentation. She said that she was asked to prepare a sales and marketing strategy. It was put to the Complainant that there was no reference to any area other than the named client in her presentation and it was because her role was designed specifically for this client. The Complainant said that the CEO did not tell her specifically that the named client was her only focus. She said that she was asked for a presentation on the named client so the CEO could check her competencies and experience. If she was asked to do a presentation for a different area of business, she would have.

The Complainant said that she formulated job descriptions for the new employees. She interviewed five candidates for two positions. She issued their terms of employment. The Complainant was asked who they reported to. She said that she was not sure of the wording of the contract but on a daily basis they reported to her. The Complainant informed the hearing that she conducted an induction and held review meetings every week with the two staff members. It was put to her that these were operational meeting, not a performance review. The Complainant said that she held a performance review with one of the two staff. The Complainant did not dispute that it was not common practice to document performance reviews.

The Complainant said that there were lots of conversations and meetings regarding sales, she did not feel she needed to include sales in her weekly email where she was reviewing her activity over the week and what she proposed for the week ahead. The Complainant said that she made an effort to meet with the CEO when she was in Limerick, but she said that he did not have an “open door policy”. She would knock on his door and he would tell her when he would be available.

The Complainant was asked if she said to the CEO that the targets were unrealistic. She said she did not. However, the budget for the named client was done in July, but the client’s premises was not available in September as planned so the targets were unrealistic.

The Complainant was asked if there were any sanctions for the subordinate regarding the issues with the pricing of events. She said that there were no sanctions.

The Complainant disputed that she was employed to look after the named client. She said she was employed as a director. The company was not 20 years in Munster. Mr O’Sullivan went into business of his own as Masterchefs Munster. Furthermore, the company was closed from March 2020, there were big plans in place.

It was put to the Complainant that she emphasised the marketing side but the only income she generated was €2k. The Complainant said that the plans have shifted and there were cancellations due to the government guidelines and restrictions.

The Complainant said that there was no historical data, clients, no breakdown of bookings, etc., so she started from the scratch. 

The Complainant was asked about the meeting on 4 November 2021. She said that she did not receive a notification, it was an unscheduled meeting. It could be her knocking on the CEO’s door. The Complainant was asked if she, once she informed the CEO Of her pregnancy, talked about takeover of her role. She said they did not, she thought that the CEO was shocked and the meeting ceased. He did not follow up and she did not get a chance to put any arrangements in place. The Complainant was asked if she did not think that she should have talked to the CEO about the takeover. She said that she implemented a system where all correspondence, notes, etc. were on the system so full hand over was on the system for the group.

This is a complaint pursuant to the Unfair Dismissals Act. The Complainant claims that she was dismissed for pregnancy or connected matters. The Respondent denies the claim and it is the Respondent’s position that the dismissal was fair an unrelated to the Complainant’s pregnancy.

I have given careful consideration to the submissions and evidence of both parties to this complaint. 

The fact of dismissal was not in dispute. The fact that the Respondent was aware of the Complainant’s pregnancy was not in dispute.

The first issue to be determined concerns whether or not the Complainant is qualified to pursue a complaint under the Act. The Complainant commenced her employment with the Respondent on 30 June 2021. Her employment was terminated on 3 December 2021.

Unfair Dismissal Act 1977 (as amended) sets out in Section 6 that;-

(1)    Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

Subsection (2) clarifies that the dismissal shall be deemed to be an unfair dismissal if it results wholly or mainly from one of the (listed) reasons which includes, inter alia,

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

Subsection (4) stipulates that;-

“Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b) the conduct of the employee,

(c) the redundancy of the employee, and

(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.”

Subsection (6) provides that;-

“In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.”

A pregnant employee is given extra protection under the Unfair Dismissals Act and that protection is applicable irrespective of the duration of the employment. Once the Complainant has disclosed the fact of pregnancy, she entered a protected period.The Complainant is not required to have one year’s continuous service to qualify for the protection afforded in the Acts. However, to succeed in her complaint, it must be established that the dismissal of the Complainant resulted “wholly or mainly” from the circumstances described in Section 6(2)(f) of the Act. In this regard the Employment Appeals Tribunal decision in Pedreschi  -v-  Lemons Beauty shop UD591/1999  is worth considering:

“The combined effect of 6(1), 6(6), 6(2)  and (6)(2)(f) do not appear to alter the basic legal principle which has been consistently held by successive divisions of the Tribunal to apply in these cases , namely, that in order to seek protection of the Unfair Dismissals Act, as amended, the claimant herself must bear the burden of proof in showing herself to be entitled to this protection. This she does by showing her dismissal was on the grounds of pregnancy.

The claimant must show the Tribunal that it has jurisdiction in the matter. Where the claimant successfully shows the Tribunal that her dismissal was, on the balance of probabilities, on the grounds of her pregnancy, or matters relating thereto, the Tribunal will then assume jurisdiction in the matter. In arriving at the decision as to whether a dismissal was on grounds of pregnancy or matters related thereto, the Tribunal will have regard to the evidence of the employer, who will seek to show that the dismissal was justified on substantial grounds, not related to the pregnancy of the employee.”

In Elms Furniture Ltd. v Ciara Leeson UDD1955, the Labour Court held as follows;-

“An employee who is dismissed by reason, inter alia, of her pregnancy is exempted from the requirement to have one year’s continuous service with their employer in order to qualify under the Act. However, the burden of proving that her dismissal is ‘wholly or mainly’ as a result of her pregnancy rests on the Complainant in such a case under the Act.”

In circumstances where the employee is pregnant there is an added onus on the employer to demonstrate it has followed fair and appropriate procedures when dismissing an employee. Exceptions do arise and such exceptions are recognised in Art 10  of Council Directive 92/85/EEC which expressly states that pregnant employees can be dismissed in exceptional circumstances not connected with their condition which are permitted under national legislation and/or practise.

The Labour Court has held in a number of key decisions that “no employee can be dismissed while they are pregnant unless there are exceptional circumstances unconnected with the pregnancy and those exceptional circumstances are notified to the employee in writing”. I refer to Carroll v Cullen DEE 13/2001and Trailer Care Holdings Ltd v Healy EDA 8/2012.

In Trailer Care Holdings Ltd v Deborah Healy, albeit considered under the provisions of the Employment Equality Acts, the Labour Court summarised the legislative provisions and authorities regarding protection of women during pregnancy as follows:

“It abundantly clear from these authorities, and from the legislative provision of the European Union, that women are to be afforded special protection from adverse treatment, and in particular from dismissal on account of their condition, from the commencement of their pregnancy until the end of their maternity leave. The entitlement to that protection is to be regarded as a fundamental and inviolable right within the legal order of the Union which the Courts and Tribunals of the Union must vindicated within the limits of their jurisdiction.”

It was not disputed that the Complainant informed that Respondent of her pregnancy on 4 November 2021. Consequently, she had entered a protected period and there was an added onus on the Respondent to ensure that its actions were procedurally robust.

My role is to determine whether the reason for the Complainant’s dismissal was her pregnancy. If that was the reason for dismissal, then by operation of law the dismissal was unfair.

The Respondent asserted that the Complainant’s dismissal was not related to her pregnancy. In the written submission, the Respondent asserted that the Complainant was aware that the Respondent had serious concerns regarding her performance in relation to the lack of sales and failure to achieve targets. The Respondent submitted that the key goal of the Complainant’s role was to maximise sales and revenue generation. The Respondent argued that the Complainant was fully aware that she was on a trial period of three months, followed by a probation period of six months. The Respondent further asserted that it was the impact of the public health measures and the failure of the Complainant to generate sales that impacted the Respondent’s decision to dismiss the Complainant. The Respondent exhibited a number of emails in support of its position.

In Richardson v H Williams & Co. Ltd UD/17/1979 the complainant was dismissed because the respondent had been dissatisfied with his work performance. The EAT noted that the claimant was not given an opportunity to defend himself and the Tribunal applied the following principles:

“(a)Where an employee has been given a justified warning that, unless his or her work improved in a specific area, his or her job would be in jeopardy, then it follows that such employee must be given:

(I)                  a reasonable time within which to effect such improvement; and

(II)                a reasonable work situation within which to concentrate on such defects.”

Accordingly, before a decision to terminate an employee’s employment is made, an employer is required to inform the employee of the respects in which he or she is failing to do the job adequately, warn the employee of the possibility of dismissal on this ground and give the employee an opportunity of improving their performance.

I note the Respondent’s reliance on the emails that were exhibited at the hearing containing comments such as:

“This a typical ‘the dog ate my homework’ stuff”; “This is loss making & you don’t have to be an accountant to see why. Basic maths need to be used in advance of issuing any future quotes”; “We need a very clear picture of where we’re going”;“I would like you to focus on sales, strategy, schedule, offer, packages etc.”;  “As per previous conversation your sales target for the first 6 months is 250k. This is to be new business generated, not conversion of organic enquiries coming to he business naturally”; “This is all positive, however 90% of your focus needs to be generating sales for {named client]”.

From the emails, it appears that the CEO of the Respondent did not have any difficulty with pointing out any shortcomings or outlining any requirements. However, there is nothing in the emails to suggest that the Complainant was put on notice that her performance was lacking to the extent that her job could be in jeopardy.

I note that on 9 November 2021, five days after the Complainant informed the Respondent of her pregnancy, the Respondent wrote to the Complainant to inform her that her trial period has concluded, and she has now commenced her probationary period. I note that, as per the Complainant’s contract, her trial period of three months, from 30th June 2021, concluded on 29th September 2021. There was no evidence proffered of any concerns regarding the Complainant’s performance, a plan of action regarding what improvements were needed and how they would be measured communicated to her before or on the date of the completion of her trial period. 

The Complainant’s probationary period would have commenced on 30th September 2021. It is noted that not until after the Complainant informed the Respondent of her pregnancy on 4 November 2021 that the Respondent decided, on 9 November 2021, to formally inform her of the commencement of her probation and of the concerns it allegedly communicated previously.  While the Respondent states in the correspondence that its “serious concerns” were outline at previous meetings, it was confirmed that no record of such meetings exists.  In my view, the absence of such evidence fatally undermines the Respondent’s position. The CEO of the Respondent further informes the Complainant that he has developed a new weekly target for the Complainant, and he would schedule weekly sales meetings to review the Complainant’s progress and provide support. It appears that, for the first time, the Respondent notifies the Complainant that should she “fail to meet these standards, it may result in you failing to pass your probationary period”, albeit the CEO expressed his confidence that the Complainant will meet the required standard during her probationary period.

I note that on 25 November 2021, the Respondent issued a Letter confirming termination of employment  to the Complainant wherein it clarified as follows;-

“When we met on 19 November 2021 as part of our ongoing review, I explained to you that unfortunately due to the most recent government covid announcement, most if not all our pre-Christmas bookings had cancelled & we expect this trend to continue well into 2022. As a result of the unprecedented financial impact we were no longer in a position to sustain your employment.”

I note that the letter does not refer to the Complainant’s underperformance or failure to meet the required standards as reasons for her dismissal. Moreover, the Respondent appears to recognise the Complainant’s performance as it confirms in the letter that “A further discretionary payment for your contribution to the company”  would be paid to the Complainant.

It is clear that the Complainant joined the Respondent at unprecedented times, both parties were acutely aware of the challenges the Respondent faced due to Covid-19 pandemic. The Respondent maintained that it had made the Complainant aware that her job was in jeopardy due to the failure to meet her targets. However, it did not provide any written evidence that it had spoken to the Complainant formally about her performance or put the Complainant on formal notice that the termination of her contract of employment was likely to occur if her performance did not improve. The correspondence exhibited at the hearing does not remotely indicate that the Complainant was informed that her job is at risk.

In the absence of any acknowledged performance review of the Complainant’s performance and/or any disciplinary process for poor performance, it is difficult to see any justification for the swift instigation of a formal process some five days after the Complainant informed the Respondent of her pregnancy. It is also alarming that following the letter of 9 November 2021 where the Respondent expresses confidence in the Complainant, offers assistance, and proposes weekly meetings to provide support,  the Respondent decided on 25 November 2021 to dismiss the Complainant “as a result of the unprecedented financial impact” of cancellations “due to the most recent government covid announcement” that the Respondent expected to “continue well into 2022”.  For the avoidance of doubt, the Respondent did not contend that the Complainant’s dismissal resulted from a redundancy situation, neither did it present any analysis supporting the decision to dismiss the Complainant.

Having carefully considered the submissions and evidence offered to me, and in the absence of any credible evidence to the contrary, I find that the Complainant’s dismissal resulted wholly or mainly from her pregnancy.

Where an employee has been dismissed and the dismissal is found to be unfair the employee shall be entitled to redress pursuant to Section 7 of the 1977 Act. Such redress might include re-instatement, re-engagement or compensation for any financial loss attributable to the dismissal where compensation for such loss does not exceed 104 weeks remuneration. The acts, omissions and conduct of both parties will be taken into account when considering the extent of the financial loss and there is an onus on a Complainant to adopt measures to mitigate the financial/ remunerative loss (which includes actual loss as well as estimated prospective loss).

Having considered the circumstances, I find that compensation is the most appropriate form of redress in the instant case.

The Complainant was dismissed on 3 December 2021. The Complainant confirmed that she commenced her maternity leave on 17 January 2022 which ended on 11 July 2022.

The requirement on a dismissed employee to seek alternative employment is very significant and was put very well by the Employment Appeals Tribunal in Sheehan v. Continental Administration Company Ltd., when the Tribunal noted that;- 

“The time that a claimant finds on his hands is not his own, unless he chooses it to be, but rather to be profitably employed in seeking to mitigate his loss.”

In Employee v Employer UD301/2011 it was held that;-

“While a Tribunal might not expect as concentrated an effort subsequent to the birth of a child, it does not entitle a claimant to suspend all effort. This is particularly so as the period of maternity payments draws to a close.”

The Complainant furnished evidence post-hearing of her efforts to mitigate her loss. In arriving at my decision as to the amount of compensation that is just and equitable, I have considered the Complainant’s not sufficiently rigorous attempts to mitigate her loss.

The Complainant secured new employment as of 2 August 2022. I note that the payslip provided by the Complainant post-hearing shows that she is paid €1,057.60 gross weekly, some €192.40 gross less per week than she was paid by the Respondent. 

I note that the Complainant contented that had she remained in employment she would have been entitled to a contractual maternity leave. The Respondent denied that it pays its employees while on maternity leave. I note that the Respondent’s Handbook as exhibited by the Respondent provides that;-

“You will not be paid by the employer while on Maternity Leave, but you may be entitled to Maternity Benefit from the Department of Social Protection, if you have sufficient insurance contributions.”

I, therefore, find that there was nothing put before me to conclude that the Complainant would have an entitlement to a payment in respect of maternity leave paid by the Respondent.

Having considered the written and verbal submissions of the parties and all of the evidence adduced at the hearing of this complaint, I declare that this complaint is well founded.  

I direct the Respondent to pay the Complainant redress of €20,000. In reaching my decision, I have taken account the Complainant’s period of unavailability for employment while in receipt of maternity benefit; the ongoing loss resulting from the difference in pay between her current employment and pay while working for the Respondent; and her inadequate efforts to mitigate her loss.

I would point out that I am constrained by the statute under which this case was referred as to the level of compensation which I can award.  Had I not been subject to that constraint, I would have awarded a significantly higher amount given the unfair treatment to which the Complainant was subjected.

Unfair dismissal - pregnancy