Complainant

Respondent

Parties

Ms Abbie  Walsh

Soraghan Auto Retail Ltd. T/A  Sandyford Motor Centre

Representatives

Mr Seamus Collins BL instructed by Mr Daniel O'Connell Keans Solicitors

Mr Colin Walsh The Society of the Irish Motor Industry

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-00056701-001

16/05/2023

This matter came before the Workplace Relations Commission dated 16/05/2023 as a complaint submitted under section 77 of the Employment Equality Act, 1998.  The aforesaid complaint was referred to me for investigation.  A hearing for that purpose was scheduled to take place on 05/10/2023.  The Complainant at all material times was employed as a Junior Salesperson in receipt of €23,000.00 per annum and she worked a 42-hour week.  The Respondent is a family-owned business involved in vehicle sales and maintenance in business for 23 years with a staff complement of 23.   

The Complainant commenced her employment in the Respondent company on 03/01/2023.  The Complainant’s employment with the Respondent ended on 08/05/2023 by way of dismissal.     

CA-00057601-001

The Complainant claims she was dismissed for a discriminatory reason under the heading of Discrimination/Equality/Equal Status on the WRC complaint form.  The Respondent denies any incidents of discrimination took place and claim she was dismissed during her probationary period due to performance.

Written submissions were filed with the WRC by both parties in advance of hearing. 

As per Complaint Form and Written Submission

The Complainant submits she commenced working with the Respondent on 3 January 2023 employed as a Junior Salesperson as confirmed by her contract of employment.  It is not disputed that the Complainant’s employment with the Respondent was subject to a 12-month probationary period in accordance with her contract which provides as follows:

Probation

“All new employees are employed on a 12-month probationary period.  During this period, an employee’s immediate supervisor / senior management will assess the individual’s capabilities, conduct and suitability to the job and workplace.  An employee may be dismissed during or at the end of this period without recourse to the discipline procedure, but subject to the Minimum Notice terms as outlined.” 

The Complainant submits she expected in time to progress to Senior Salesperson, and she had been promised by her employers, specifically Joe O’Grady and DH (no longer an employee of the Respondent company) that she would be duly trained to achieve said position.

The Complainant submits her line managers at the time of the commencement of her employment were the Sales Manager DH and the Company Director Bruce Soraghan (hereafter BS). 

The Complainant submits she attended monthly meetings with DH and BS when she started but these meetings were discontinued in April.  The objective of the meetings was the discussion of her previous month’s figures and her overall performance.  The Complainant submits she always received positive feedback in relation to her performance.  At the end of her monthly review meeting for February the Complainant submits she was told she would be put under review for promotion to Senior Salesperson as a result of which she would have been put on a higher rate of pay to €25,000 and she would be given the use of a company car.

The Complainant discovered she was pregnant on 24 March 2023.  There were complications with the Complainant’s pregnancy necessitating a scan.  Around this time a new Sales Manager namely CMC was appointed to replace DH who had resigned.  The Complainant submits no further monthly sales meetings took place.  The Complainant submits she informed DH of her pregnancy on 4 April 2023.  The Complainant submits approximately two weeks later she informed PP, a Senior Salesperson that she was pregnant.

The Complainant submits she missed work on Thursday 6 April due to extreme fatigue followed by Monday 17 April for a hospital appointment.  The Complainant submits she did not attend work on Thursday 4 May and Saturday 6 May as she was sick.  On her return to work on Monday 8 May the Complainant submits she was invited into the office by CMC.  The Complainant submits that CMC told her that “the lads upstairs [referring to BS and JO’G] have had a think and think its best if you go.”  The Complainant submits she asked for reasons for her dismissal and was told by CMC “its just how they feel, its just what they want, apparently its not working.”  The Complainant submits she was then told by CMC that “the management weren’t a fan of the secrets” which the Complainant submits is a blatant allusion to her pregnancy. 

The Complainant submits she informed the Respondent of her pregnancy and they were absolutely aware.  The Complainant submits she came under increased surveillance and visual scrutiny in the weeks leading up to her dismissal which she submits tends to show the Respondent’s awareness of her pregnancy.  The Complainant submits she was not given any notice of her dismissal and she submits she was told by CMC the Respondent had every right to dismiss her with immediate effect as she was still on her 12 months probationary period. 

Summary of Direct Evidence of the Complainant:

The Complainant described her role as that of not doing sales straight away but doing petrol and diesel runs, runs to the NCT centres in Deansgrange and Greenhills, going out to collect cars from customers and going to Baldonnell to collect new cars.  The Complainant said she thought she would be eased into the sales process and she was shadowing DH for three days and that for the rest of January she would not describe what she got as training it was more like getting advice from DH and the others if she asked questions.  She was also trying to shadow two other senior salespersons in order to learn from them.  The Complainant states she made her first sale on her fourth day in the job and her Sales Manager DH told her she was flying it and that her bosses were very impressed at the review at end of January. 

The Complainant describes the weeklong formal training event and she says she did great at that as did the whole team and she states she excelled.  At the meeting at the end of January they said they were very impressed and she was praised for the numbers that go up on the board.  The Complainant states this is the number of deposits taken and there is a friendly competition among all the salespersons.  The Complainant states DH told her at the end of January meeting that he wasn’t expecting her to be doing so well and she states BS was quite supportive but DH spoke more at the meeting.

The Complainant submits she had been told by DH there was no way she would be expected to hit those targets and to concentrate on the deposits.   The Complainant submits she was struggling with the finance but she was told by DH to focus more on the used sales.     

The Complainant submits in February everybody was still on a high after January and she set herself a target to do more and she upped her new sales.  The Complainant states she took more deposits in February than in January and when compared with the rest of the team in terms of deposits in January she came third and in February she came second. 

The Complainant submits at the monthly meeting at the end of February her finance had gone up a little bit as she had achieved slightly more than the previous month.  The Complainant states she is still being told by DH and BS that she won’t hit the targets but to work towards those eventually.  The Complainant states she was never told she was underperforming.  She was told to try and get more finance and to try and sell more new cars.   

The Complainant states she did ok in March albeit struggling with the transportation of new cars and a sale is not realised from deposits taken until such time as the car leaves the garage.  She states the stress in March was trying to get the new cars in to the country and that three transactions fell through. 

The Complainant states there was no meeting at the end of March as DH had tendered his notice and everybody was walking on eggshells.  The Complainant states DH had been there for so long he made lots of connections during his time there.

The Complainant found out she was pregnant on 24 March and she was terrified due to what she knew to be the existence of possible complications that required immediate medical attention.  She had to take a day off for the hospital appointment and when she advised of this to DH he said fine – perfect – no worries. 

The Complainant submits that on 4 April 2023 she told DH that she was pregnant after she had a scan.  The Complainant states he asked her “mentally where was her head at?  Was she ok to work? Let me know if there is anything I can do?”

The Complainant states DH left the company the next day but she still saw him lots around the garage as he was buying the trade cars from them. 

The Complainant states she had told DH about her pregnancy for safety reasons as the job can be quite manual and physical sometimes.  She also told one of the senior salespersons of her pregnancy when DH was no longer there.  She knew him fairly well as he was a friend of her sister.

The Complainant states she knows they all knew she was pregnant and she believes they were told and she sensed a change in attitude towards her. 

The Complainant states that when she returned to work on Monday 8 May 2023 after being out sick the previous Thursday and Saturday (Friday is her day off) she was checking her emails when CMC asked to speak to her.  CMC told her she was being dismissed and the Complainant states CMC told her “the lads upstairs have had a think and they think its best if you go.”  The Complainant states CMC said to her “they’re just not happy with the way things were going.  The Complainant states performance was not mentioned and CMC said “its what they want it’s how they feel.”  The Complainant states she asked CMC if it was because she was sick and he said “no.”  The Complainant states she asked him if it was anything she had done and he said “they are not a fan of secrets”. 

The Complainant states she told him the only secret she had is that she is pregnant and he shrugged his shoulders.  The Complainant does not believe he was hearing this for the first time but still she was waiting for him to backtrack.  The Complainant states she knew this couldn’t be happening.  The Complainant states she was waiting for him to backtrack and to tell her he would go upstairs and chat with the lads but it did not faze him.  The Complainant states she did not receive anything in writing.  The Complainant states she had handovers and she lost out on deals for deposits which she had taken.  The Complainant states her performance review meetings ended in February and that everybody was all over the place when they knew DH was leaving. 

The Complainant states she was always interested in cars and that she was unable to get an apprenticeship as a mechanic.  The Complainant states she worked in Halfords for a while and then decided to go into sales which she said was like an apprenticeship and that was the word that was used.

Summary of Cross Examination of the Complainant:

Mr Walsh puts it to the Complainant that her position now is that she was hired as a junior salesperson who did not have to sell cars which he states in in conflict with the evidence of BS.  Mr Walsh puts it to the Complainant that there are inconsistencies in her evidence between her complaint form and her submission and her direct evidence.  Mr Walsh asks the Complainant when did she meet CMC for the first time and she confirms she met him on 20 March the first day he started.   Mr Walsh asked the Complainant what portion of her day would be spent inside and outside after asking how many cars on the forecourt and how many new cars on the shopfloor. 

The Complainant stated there would approximately 30/40 cars in the forecourt a mixture of new and used.  Mr Walsh asked what portion of her day she would spend inside and out to which the Complainant replied a mixture of both.  Mr Walsh puts it to her in wintertime she would be wearing a coat and the Complainant states she would keep her jacket on but that would be unusual for May.  Mr Walsh puts it to her that another inconsistency in her evidence is that her review meetings ceased in February. 

Mr Walsh asks the Complainant why DH would still be hanging around if he had finished on 5 April and the Complainant states she had already clarified that.  Mr Walsh asks the Complainant to explain the target document exhibited at hearing and asks if it is her position that she was told the targets do not apply to her to which the Complainant responds she was told she would not be expected to achieve anything like that.  Mr Walsh asks the Complainant if she is familiar with the statutory sales apprenticeship to which she replies she is not. 

Mr Walsh puts it to the Complainant that it is her position she was told she did not have to meet the targets to which she replies she was told to work on taking deposits, the details of the cars, look at the requirements of the customer and try to sell them the car that suits them the most not the car they want.  By way of an example the Complainant cited a customer coming in thinking he would like a Peugeot 208 and in conversation she discovers he has three children so clearly a Peugeot 208 would be too small. 

Mr Walsh puts it to the Complainant that she had said in her complaint form that she and her partner had agreed not to announce her pregnancy but in her submission to the WRC she states she told DH and PP.  Mr Walsh asks the Complainant when does she think she would have been in a better position to recall who exactly she told – when she was completing the WRC complaint form back in May or more recently when filing written submission.  The Complainant states she told DH and PP for protection.  Mr Walsh asks the Complainant why she told DH when she did knowing he was leaving the following day and she replies she was waiting until she had the scan and she did not know he was leaving the following day as she states they were all told he was leaving mid-April.  The Complainant states she told DH because he was her manager and she knew he had to be told.  The Complainant states they may be saying DH left on 6 April but he was still in the building long after that.

Mr Walsh puts it to the Complainant that she knew the two people who could give evidence had left the company.  Mr Walsh asks the Complainant what appointments CMC had been notified of and she replies hospital appointments to which Mr Walsh queries if she supplied any sick certificates etc to which the Complainant replies she would have done so when she announced to all.  When asked why she could not have told CMC when he became her line manager the Complainant replied she just could not raise it with him.  

When asked how the Complainant knew that everybody knew she was pregnant she replied that everybody’s attitude towards her changed.  The Complainant states everyone was watching her at work and even on social media since she was dismissed. 

When asked if the Complainant accepted she had received training she replied yes but not what she’d expected.

Complainant Closing Submissions:

Mr Collins turns to the law in his closing submissions set out below under legal submissions.  Mr Collins submits the Complainant was told by DH the targets were aspirational in nature.  Mr Collins submits it is unbelievable that she would be expected to sell 60 cars in a month.  The Complainant told DH of her pregnancy on 4 April and she did not ask that he keep it confidential.  The Complainant states she told PP around 6/7 April. 

Mr Collins submits it was not contradicted by the Respondent that the Complainant told CMC on 8 May and at this point on hearing of her pregnancy he should have taken further instructions.  Mr Collins submits that is three instances during which the employer was made aware of the Complainant’s pregnancy.  Mr Collins submits there were no reasons for the Complainant’s dismissal given in writing.   

Legal Submissions of Complainant:

EU Legislation

Council Directive 92/85/EEC (on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding) (the "Pregnant Workers Directive" or "PWD") provides relevant legal authority for the present matter.

Article 2(a) PWD defines a "pregnant worker " as a "pregnant worker who informs her employerof her condition, in accordance with national legislation and/or practice".  In this regard, the case of Kiera Dunne Murphy v Jabez Limited ADJ-00027555 (12/01/2023) clarifies the following regarding 'national practice ':

"The Pregnancy Directive defines a pregnant worker as a worker "who informs her employer of her condition, in accordance with national legislation and/or national practice.  " While there is no national legislation in Ireland regarding the form of notice to be given to an employer regarding pregnancy, the national practice is that an employee tells their employer that they are expecting a baby, indicating the due date and the date that they intend commencing maternity leave.”

The Claimant has satisfied this requirement under Article 2(a) of the PWD of informing her employer of her pregnancy and she therefore has the legal protections comprised within the PWD.

Article 10 PWD provides

"In order to guarantee workers, within the meaning of Article 2, the exercise of their health and safety protection rights as recognised under this Article, it shall be provided that:

(i)             Member States shall take the necessary measures to prohibit the dismissalof workers, within the meaning of Article 2, during the period from thebeginning of their pregnancy to the end of the maternity leave referred to in Article 8(1), save in exceptional cases not connected with their condition which are permitted under national legislation and/or practice and, where applicable, provided that the competent authority has given its consent;

(ii)           If a worker, within the meaning of Article 2, is dismissed during the period referred to in point 1, the employer must cite duly substantiated grounds for her dismissal in writing;

(iii)          Member States shall take the necessary measures to protect workers, within the meaning of Article 2, from the consequences of dismissal which is unlawfully virtue of point 1.

Having regard to the Pregnant Workers Directive, it is clear that the Respondent has not demonstrated that the Claimant was dismissed for reasons not connected with her pregnancy. Further, the Respondent has not provided duly substantiated reasons in writing for the Claimant's dismissal.

Under the Claimant's contract of employment, as part of her probationary period, her “capabilities, conduct and suitability to the job and workplace" were to be assessed by the Respondent.  The Claimant could, therefore, have been dismissed without recourse to the disciplinary procedure as she was still on probation.  The Claimant submits, however, that her dismissal came entirely out-of-the-blue and she had been given no indication that she was underperforming or was not suitable to the workplace.  Indeed, the opposite is true: the Claimant had been put under review for promotion to senior salesperson in light of her excellent performance as a junior salesperson.

Irish Authorities

An analysis of the prohibition of any pregnancy-related dismissal can be seen in the decision of the Equality Tribunal in O'Brien v Persian Properties t/a O'Callaghan Hotels where the Equality Officer relied on the decisions of the Court of Justice in Dekker, Webb and Brown in confirming that pregnancy is "a special protected period' and pointed out that the Labour Court had found that only the "most exceptional circumstances not connected with the condition of pregnancy allow a woman to be dismissed while pregnant".

In the case of Assico Assembly Ltd 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 and in the case of discrimination as a matter of good practice should be set out in writing.”

The Respondent simply has not complied with any of its legal obligations in this regard.

In Emma Rooney v Nomos Productions ADJ-00039520(12/07/2023), an employer had dismissed a pregnant worker and made reference to the worker's 'style ', 'synergy ' and not being the 'right fit ' when dismissing her.  The employer had also, however, told the pregnant worker that she had done nothing wrong.  The Adjudicator criticised the language used by the Respondent in dismissing the Claimant, noting: "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 Adjudicator in Emma Rooney found that a prima facie case of discriminatory dismissal had been made out. The Adjudicator highlighted the requirement of Article 10.2 of Pregnant Workers Directive that an employer "cite duly substantiated grounds for her dismissal ", noting:

"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.” 

While the WRC determined in Emma Rooney that the Claimant had not been dismissed on the grounds of her pregnancy (and therefore did not uphold the main complaint), it did determine that the Respondent failed to comply with the requirement to notify the complainant in writing of the grounds for the dismissal and awarded the complainant €10,000 for this failure.

The Respondent in the present matter also presented vague, unwritten reasons for the dismissal of the Claimant; the reasons were in no way substantiated.

Irish Legislation

Section 6(2A) of the 1998 Act also provides protection for pregnant workers against less favourable treatment in the workplace. It provides:

2(A) Without prejudice to the generality of subsections (1) and (2), discrimination on the gender ground shall be taken to occur where, on a ground related to her pregnancy or maternity leave, a woman employee is treated, contrary to any statutory requirement, less favourably than another employee is, has been or would be treated.

The abruptness of the Claimant's dismissal and the failure to give her her statutory minimum notice raises an inference that the Claimant's pregnancy (whether or not she had informed her employer of same within the meaning of Article 2(a) PWD) caused her to be treated less favourably than another employee would have been treated in the manner of her dismissal. It is submitted that even if the PWD does not have application in this matter — which is strenuously denied - national legislation, and in particular Section 6(2A) of the 1998 Act, has been breached by the Respondent and Claimant remains entitled to compensation for that breach.

The Claimant seeks compensation for the effects of the discriminatory dismissal which she suffered. Guidance on quantum in relations to awards of discrimination has been given by the Labour Court in the case of Lee t/a Peking House v Fox EED036, holding that the quantum must compensate:

"[the] effects which flowed from the discrimination which occurred. This includes not only financial loss suffered by the Complainant arising from the discrimination but also the distress and indignity which she suffered in consequence thereof”. 

As per Written Submission

The Respondent submits the Complainant was employed by Sandyford Motor Centre for a period of 5 months between 3/1/23 to 8/5/23.  The Complainant was paid €442.30 per week excluding commission.  The Complainant was hired as a Junior Salesperson.  The Respondent submits the Complainant received specialist external sales training and internal company training on an ongoing basis.

The Respondent submits the Complainant’s performance was reviewed monthly by the sales manager and company director as outlined on her complaint.   The Respondent submits in these meetings sales targets were agreed and set for the coming month / quarter.

The Respondent submits the Complainant has never reached her agreed Sales, Finance penetration and Paint protection targets.  The Respondent submits the Complainant’s performance decreased each month.  The Respondent submits the agreed target for Q1 was 60 vehicles, the Complainant sold 23.

The Respondent submits there was nothing to indicate from the Complainant’s performance that this would improve.  The Respondent submits that following a review towards to the end of the Complainant’s probationary period taking account of all the circumstances senior management decided the Complainant was unsuccessful in passing her probationary period and as such the Complainant was dismissed and was paid one month in lieu of notice in line with the probationary clause in Miss Walsh’s employment contract.

The Respondent submits it is not clear from the Complainant’s complaint under what grounds her complaint is being made.  The Respondent submits the Complainant has failed to establish a prima facie case that there has been any instance of discrimination.

The Respondent denies that any instances of discrimination took place.  The Respondent submits the company had no knowledge whatsoever of the Complainant’s pregnancy and wish to highlight the fact that the Complainant clearly states in her submission that she did not tell the company, therefore they would have no way of knowing as she was in the early stages of her pregnancy.

The Respondent refers to the decision in - Donal O’Donovan v Over-C Technology Limited and Over-C Limited [2021] IECA 37 - in which it was held that during a probationary period, an employer can terminate an employee’s employment for any reason, including for poor performance, provided adequate notice is given.

The Complainant was provided adequate notice and dismissed within her probationary period due to performance.

The Respondent respectfully invites the Adjudication Officer to dismiss the complaint in view of the foregoing. 

Summary of Direct Evidence of Respondent witness Mr Joe O’Grady (hereafter JO’G):

The witness describes his role within the Respondent company as that of Group Head of Finance & Development.  He states the company is one that is very conscious of gender balance and they have five female employees out of a staff complement of twenty.  He states they had a pregnant employee in the past and they would have undertaken a risk assessment as soon as she informed them of her pregnancy and after taking an extended maternity leave the employee was facilitated with amended working hours on her return.

The witness provided training details which he described as shadowing the sales manager together with formal training delivered by a company called MindCoach.  The witness states he did not promise a senior sales role and that he cannot promise that as the acquisition of same is based on the numbers.  The witness provided sales numbers achieved by the Complainant as follows:

The witness submits initially they were quite happy with her performance but then there was a decline.  The witness states sales are difficult and states a steady decline not good enough for them and not good either for the salesperson.  JO’G states they did not know that the Complainant was pregnant and states it is important that they know as soon as someone is pregnant so that they can adjust for that.  The witness states they did not become of the pregnancy until such time as they received the WRC complaint form.

Summary of Cross Examination of Respondent witness Mr Joe O’Grady (hereafter JO’G):

Mr Collins puts it to JO’G that the Complainant will say those were not her targets referring to the target of 150 units per year.  When it is put to the witness that he had said the Complainant was shadowing a more senior person Mr Collins asks if she was also expected to sell 60 cars in the first quarter of the year and the witness responds yes.  The witness states that it is only counts as a sale when the car actually leaves the premises. 

When asked by Mr Collins if anybody who did not reach their target of 60 would be fired the witness responded that it was more that the curve was going downwards in a cut-throat business and the dealership will only make money if people are performing.  JO’G states that a loss incurred by the salesperson is not taken out of their commission – if a salesperson takes in a car (trade in) and it is sold at a loss the company bears the loss. 

Mr Collins puts it to the witness that he seems to have made the decision early in her probation that the Complainant wasn’t going to cut it.  The witness responds that the curve was not remaining constant it was going down.  When it is put to the witness that the Complainant will say she took 11 deposits in January he states he does not count deposits – he only counts sales as people can change their mind.  JO’G states the problem was the downward curve because it is increases in the numbers they need to see and three units in April didn’t cut it. 

Mr Collins puts it to JO’G that it will be the Complainant’s evidence that she did inform the Respondent company of her pregnancy as she told DH.  The witness states he is unable to confirm or deny that as DH left the company to set up his own business.  It is confirmed by the witness that DH was the Complainant’s line manager before the new Sales Manager was brought in.

Mr Collins asks the witness how much of a say did he have in the dismissal and he responds that it was discussed and when asked if there was anything written down the witness replies “no”. 

Summary of Direct Evidence of Respondent witness Mr Bruce Soraghan (hereafter BS):

The witness gives a brief description of the Complainant’s role which he describes as a sales position involving

·        Meet and greet the customer

·        Build rapport

·        Sell the product

·        Follow up with the customer

Having regard to sales training provided for the Complainant BS states there was considerable time invested in the Complainant. 

BS states she shadowed DH and that she was stuck at his hip basically for two months.  The company engaged the services of an external consultant in vehicle sales for the team.  BS states this consisted of one week of formal training of which the Complainant availed and it involved coaching sessions and feedback loops.  The witness states it is not just about selling metal it is about selling finance and selling paint protection.  BS states he knows the Complainant struggled talking finance with the customers.

BS states the environment is very structured and targets are set and states they have to have targets as it is a sales environment.  BS states the Complainant would have been told it was a demanding environment and she was mad hot to become a senior salesperson overnight.  BS states he told the Complainant “you have to deliver you have to perform.”   BS states that at the commencement of her employment the contract was signed and she was given the handbook and the targets would have been given to her then too.   

BS states they try to be supportive but it comes down to the numbers and at the end of every month this would be fed back to the Complainant.  BS states he knew there was a difficult conversation coming their way and it would be made clear to her that she was not cutting it.   BS states it would have been made quite clear and he doesn’t miss.   When asked if it is his evidence that the Complainant was told this he replies “absolutely”.  BS states the Complainant will say the feedback was always positive but maybe she is confusing positive with supportive because the trend was unravelling. 

When asked if reasons were provided for the Complainant’s absence BS states there were no reasons and states they have a tendency not to get into questions about sickness as they would be scared sh*tless to do so.  BS states the first time he found out the Complainant was pregnant was from the submission form to the WRC.  BS states the Complainant did not advise any of the managers at any point in time.

BS describes the rationale for the Complainant’s dismissal as lack of performance, pure and simple black and white.  BS reiterates the targets did apply to the Complainant as there is only one set of targets applicable to all.  BS states all the various policies set out in the company handbook which was made available to the Complainant at contract stage. 

Summary of Cross Examination of Respondent witness Mr Bruce Soraghan (hereafter BS):

Mr Collins asks the witness if the targets still applied even though she was joined at the hip to DH to which the witness replies yes and that they have men and women delivering on these numbers.  The witness states the numbers are achievable and that DH would also have given the Complainant some sales.

Having regard to the monthly meetings Mr Collins asks the witness to provide an example of a time he spoke to the Complainant about her performance.  The witness responds there are meetings at the end of every month and he is pressed by Mr Collins to provide a specific example of a time when he sat down with the Complainant to discuss her underperformance – “a time when you sat down with her and said you are not doing well here” to which the witness responds he does not recall.  When asked where such meetings took place the witness replied they took place in DH’s office and when asked by Mr Collins if the witness can remember putting the figures to her he replies by saying  that they try to be supportive.  When asked by Mr Collins how the Complainant reacted to this conversation he does not recall. 

BS states the Complainant had a line beaten into DH’s office about getting a senior position company car etc but no promises were ever given.  BS states targets were given to her early in January.  It was a target of 60 and she delivered 20 and BS states it is all do with quantum. 

Mr Collins asks about the monthly meetings and the attendees.  BS confirms the monthly meetings were religiously held and he would have attended with DH prior to the April one at which the new Sales Manager CMC was in attendance.  Mr Collins asks if the Complainant was told of her underperformance at the March meeting and what was her reaction.  The witness cannot recall her exact reaction. 

Mr Collins asks BS if he was involved in the decision to dismiss and he replies “yes.”  Mr Collins asks the witness if he gave clear instructions to CMC and those clear reasons were underperformance.  BS replies that people have their own recall of events but you do not let people go unless it’s for underperformance.  When asked if he wrote a letter to explain the reasons for dismissal the witness replies they do not typically do that.  The witness states from day one the Complainant knew it is a very hard role – a cutthroat role, there was a shared monthly review.  BS states the Complainant was not delivering on the numbers and she ran out of road eventually. 

Respondent Closing Submission:

Mr Walsh submits the company had no knowledge of the Complainant’s pregnancy and she failed to make a legitimate connection between those she told making its way to the company as she told two people before they left the company.

The Company has clear policies for maternity and the Complainant was aware of this for example extended leave and working arrangements and the company actively pursues gender balance.

Mr Walsh submits cars is a numbers business and you have to be good at it.  Targets are set but the Complainant gives evidence those targets are not applicable to her.  The Respondent was not aware the Complainant was pregnant and she was dismissed during her probationary period and it is the company’s position she did not meet her targets in fact she was nowhere close.  

CA-00056701-001

The Complainant has alleged that her dismissal constituted discrimination within the meaning of the Acts.  It has been alleged that this discrimination occurred on the grounds of her gender, specifically the fact of her pregnancy on the date of her dismissal. 

In conducting my investigation, I have reviewed all relevant submissions and supporting documentation presented to me by the parties.  I have carefully considered the oral evidence adduced at hearing.    I deemed it necessary to make my own inquiries into the complaint during hearing to establish and understand the facts and to seek clarification on certain matters. 

Having carefully considered at length all the evidence presented to me I find the within complaint is characterised by significant disparity in the perception of the parties as to the manner in which events unfolded during the tenure of the Complainant’s employment in the Respondent company.  I have two versions of events before me that are entirely at odds in most respects.  Notwithstanding, I am obliged to draw my conclusions from the facts as presented to me and by the application of the law to those said facts whilst taking into account all other relevant factors and surrounding circumstances.  The role of the Adjudication Officer is to decide the case before him/her, resolving conflicts in evidence according to the direct evidence presented at hearing. 

The Relevant Law:

Irish law provides robust protection to women who have been dismissed for any reason related to pregnancy in accordance with its obligation in European law.  It is well established in case law that pregnancy is “a special protected period” and the Labour Court has found that only “the most exceptional circumstances not connected with the condition of pregnancy allow a woman to be dismissed while pregnant.”  The rationale for this approach is evident from the decision of C-232/09 Danosa v. LKB Lizings SIA [2011] CMLR 45, at 60, the Court held as follows:

“It is precisely in view of the harmful effects which the risk of dismissal may have on the physical and mental state of women who are pregnant, have recently given birth or are breastfeeding, including the particularly serious risk that women may be prompted voluntarily to terminate their pregnancy, that, pursuant to Article 10 of Directive 92/85, the EU legislature provided for special protection for women, by prohibiting dismissal during the period from the beginning of pregnancy to the end of maternity leave.” 

In the case of Dekkar v. Stichting voor Jong Volwassenen (VJV-Centrum) [1990] ECR 1-3941, the European Court of Justice held that since pregnancy is a uniquely female condition, less favourable treatment on the grounds of pregnancy constitutes discrimination on the grounds of gender. 

Section 85A of the Acts provides for the allocation of the probative burden between a complainant and a respondent in cases coming within its ambit.  In the matter of Mitchell v. Southern HealthBoard [2001] ELR 201the Labour Court held that: -

“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.  [emphasis added]

It is only if these 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.”

However, it is now well established that the existence of the pregnancy itself is sufficient to shift the burden of proof to the employer to prove that a dismissal of a pregnant employee was not on grounds of pregnancy.  The fact of pregnancy is the “primary fact”.    In effect what this means is for an employer to dismiss a woman during her pregnancy, regardless of the reason for that dismissal, they must have duly substantiated reasons for the dismissal provided to the employee in writing and these reasons must be substantial as held by the Labour Court in Assico Assembly Limited as cited in the Complainant’s legal submission above.    

In relation to this burden of proof in matters involving a specific allegation of pregnancy related dismissal I note the following extract from Bolger Bruton and Kimber, Employment Equality Law (Round Hall Press, 2012): -

“The case law on burden of proof in cases of alleged pregnancy dismissal has developed in a singular manner due to the particular provisions of the Equal Treatment and Pregnancy Directives.  It is now well established that the existence of the pregnancy itself is sufficient to shift the burden of proof to the employer to prove that a dismissal of a pregnant was not on the grounds of pregnancy.”

In the matter of Teresa Cross (Shanahan) Croc’s Hair and Beauty -AND- Helen Ahern [EDA 195] the Labour Court set out at considerable length its understanding of the legal protections for pregnant women as follows: 

“Since the decision in Dekker the protection afforded to pregnant women in employment has been strengthened considerably in the case law of the CJEU and in the legislative provisions of the European Union.  Equality on grounds of gender is now expressly guaranteed by Article 23 of the Charter of Fundamental Rights of the European Union. 

The Charter is now incorporated in the Treaty on the Functioning of the European Union (the Lisbon Treaty) and has the same legal standing as all preceding and current Treaties.  It can thus be properly regarded as part of the primary legislation of the European Union. 

The jurisprudential principle that discrimination on grounds of pregnancy constitutes direct discrimination on grounds of sex is now codified in Directive 2006/54/EC on the Principle of Equal Treatment of Men and Women (the Recast Directive).  This Directive provides, at Article 2.2 (c), that any less favourable treatment of a woman related to pregnancy or maternity leave within the meaning of the Directive 92/85/EEC constitutes unlawful discrimination for the purpose of that Directive”.

The Labour Court in Teresa Cross cites extensively from case 406/06 Paquay v. Societe d’architectes Hoet + Minnie SPRL [2007] ECR 1-8511.  The Labour Court held in Teresa Cross that the Court in Paquay “pointed out that in accordance with its case law the prohibition of less favourable treatment, on grounds of pregnancy comes within the ambit of both the Equal Treatment Directive and the Pregnancy Directive. The importance of providing real and effective redress in cases where the rights of pregnant workers are infringed was emphasised by the Court at pars 45-47 if its judgment in Paquay.  Here the Court said:

45 However, the objective is to arrive a real equality of opportunity and cannot therefore be attained in the absence of measures appropriate to restore such equality when it has not been observed.  Those measures must guarantee real and effective judicial protection and have a real deterrent effect on the employer (Marshall, paragraph 24).

46 Such requirements necessarily entail that the particular circumstances of each breach of the principle of equal treatment should be taken into account.  Where financial compensation is the measure adopted in order to achieve the objective previously indicated, it must be adequate, in that it must enable the loss and damage actually sustained as a result of the discriminatory dismissal to be made good in full in accordance with the applicable national rules (Marshall paragraphs 25 and 26).

47 It is necessary to recall that, in accordance with Article 12 of Directive 92/85, Member States are also bound to take the necessary measures to enable all workers who consider themselves wronged by failure to comply with the obligations arising from that directive, including those arising from its Article 10, to pursue their claims by judicial process…

49 While recognising that the Member States are not bound, under Article 6 of Directive 76/207 or Article 12 of Directive 92/85, to adopt a specific measure, nevertheless the fact remains, as is clear from paragraph 45 of the present judgment, that the measure chosen must be such as to ensure effective and efficient legal protection, must have a genuine dissuasive effect with regard to the employer and must be commensurate with the injury suffered.”

In summary the Labour Court in Teresa Cross held as follows:

“It is 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 on account of their condition from the commencement of their pregnancy to the end of their maternity leave.  The entitlement to that protection is to be regarded as a fundamental right within the legal order of the Union which the Courts and Tribunals of the Union must vindicate within the limits of their jurisdiction.  It seems equally clear that where a pregnant woman is treated adversely because of her condition during this period of special protection the employer bears the burden of proving, on cogent and credible evidence, that such treatment was in no sense whatsoever related to her pregnancy… [emphasis added]. 

Having regard to the case law cited above, I find the Complainant has discharged the burden of proof in regard to setting out a prima facie case as set out in the Acts.  Accordingly, the Respondent bears the burden of proving, on “cogent and credible evidence”, that the Complainant’s dismissal was not in any way related to her pregnancy. 

The Relevant Facts: 

It is not disputed between the parties that the Complainant’s employment with the Respondent was subject to a 12-month probationary period.  The Respondent submits that following a review towards the end of the Complainant’s probationary period taking into account all of the circumstances senior management decided the Complainant was unsuccessful in passing her probation and as such was dismissed.  As a matter of fact, the Complainant was nowhere near the end of her probationary period.  The Complainant was dismissed after four months and one week in to a 12-month probationary period.

Knowledge of Pregnancy:

The Respondent position is they had no knowledge of the Complainant’s pregnancy.  The Complainant states she told the Sales Manager DH who was her line manger on 4th April that she was pregnant.  Shortly thereafter on or around 6th or 7th April she told another colleague.  I accept the Complainant told her line manager of her pregnancy.  Having carefully considered the evidence presented I am of the view that when the Complainant informed her line manager DH that she was pregnant, on the balance of probability, he would have informed senior management as he knew or ought to have known he was obliged to do.  I am satisfied that the Respondent became aware of the Complainant’s pregnancy at that time. 

Much was made by the Respondent of the fact that DH left the Respondent company the following day.   However, he did not leave the country.  I am satisfied he was in and out of the garage on a regular basis as he was buying trade cars from the Respondent and even if he did not impart the information of his direct report’s pregnancy to senior management that day prior to leaving he had ample opportunity to do so subsequently to the employer for whom he had worked for fourteen years. 

I note DH was not produced as a witness.  The failure to produce DH as a witness is the Respondent’s prerogative and I am entitled to draw inferences therefrom. 

I am satisfied that the Respondent was aware of the Complainant’s pregnancy and even if I had a doubt, that doubt would be quickly dispelled by virtue of the fact the Complainant told CMC she was pregnant when he was in the act of dismissing her.  The Respondent certainly knew at this juncture and I note this was not disputed at hearing.  I am satisfied the fact that CMC merely shrugged his shoulders when the Complainant told him she was pregnant indicates that he already knew.  If he did not know and this was indeed the first he heard of the pregnancy, I am of the view he would have brought the dismissal conversation to a halt immediately and referred back to “the lads upstairs” for instructions because unless he has been living under a rock for a considerable number of years, he would have been well aware of the statutory protections thereto and the potential ramifications arising from dismissing a pregnant employee without due regard to same.  I note CMC was not produced as a witness.  The failure to produce CMC as a witness is the Respondent’s prerogative and I am entitled to draw inferences therefrom. 

“Cogent and credible evidence” that the dismissal of the Complainant was not in any way related to her pregnancy:

The Respondent Managing Director gave evidence that the dismissal of the Complainant was due to lack of performance, pure and simple black and white.  However, I note there were no contemporaneous notes of any of the conversations that were alleged to have taken place with the Complainant in respect of her underperformance.   The Respondent was unable to recall the Complainant’s reaction to such conversations or to recall any specifics at all.  The Respondent maintained that it had made the Complainant aware that her probation was in jeopardy due to the failure to meet her targets.

For completeness, there was much discussion at hearing on the matter of the aforesaid targets.  I am not inclined to accept the Respondent’s position that the same targets applied to the Complainant as to senior salespersons.  It is simply not credible and makes absolutely no sense that the Complainant would be expected to sell 60 cars in the first quarter of the year, whilst just in the door,  on probation and undertaking all the other tasks that seemed to be delegated to her for example petrol and diesel runs, trips to the NCT test centres, trips to collect customer cars and trips to collect cars at Baldonnell.  The amount of time spent away from the garage / forecourt engaging in the aforesaid tasks that I am assuming are delegated to the most junior person would have seriously curtailed her ability to engage in sales.  I accept the evidence of the Complainant in this regard that she had been told by the Sales Manager (DH) that there was no way she would be expected to hit those targets and to concentrate on the deposits. 

I find it striking that the Respondent did not provide any statistical data in respect of sales made and targets achieved by any other person on probation in the Respondent company in the past.    This information should have been easily available and accessible as I note one of the Complainant’s colleagues, PP, had commenced his employment in the Respondent company at some stage in 2022.     

I find the evidence of the Respondent in respect of the review meetings during which it is alleged the matter of underperformance was addressed with the Complainant to be unsatisfactory and lacking in candour in many respects.  I am inclined to prefer the evidence of the Complainant in this regard in terms of her recollection of what was said and when.  I am satisfied than when DH announced his resignation from the company the review meetings ceased.  I accept the evidence of the Complainant that there was no review meeting at the end of March or thereafter. 

In the normal course of a probation performance issues should he addressed as this is the purpose of a probation.  There is no cogent evidence from the Respondent that this was done either during or at the termination of the Complainant’s employment.  There is no documentary evidence of the conversations alleged to have taken place during which the Complainant was told she was underperforming in her role and her job was in jeopardy. 

The Respondent claims of underperformance are not borne out by the facts.  I am unable to find from the facts as presented to me that the Complainant’s alleged underperformance was addressed with her in any meaningful way or at all by the Respondent because of the vague recollection of the Respondent managing director despite his assertions review meetings would have been religiously held and that he would have attended with DH prior to the April one at which CMC was in attendance.  The failure to produce either DH or CMC as a witness in this regard is the Respondent’s prerogative and I am entitled to draw inferences therefrom. 

The Complainant’s account is more credible due to the lack of any documentation whatsoever on the part of the Respondent.  The lack of a record to flag the alleged underperformance issues does little to convince me the Complainant’s performance was at issue in the within case.   

If the Complainant was not dismissed for performance issues as the Respondent has failed to substantiate then I cannot avoid the conclusion, and it is my view that any reasonable person would concur, that the Complainant was dismissed because of her pregnancy.     

For completeness, I have not overlooked the matter of the downward trajectory in the statistical data provided by the Respondent. I note the Respondent provided raw statistical data for the months January 2023 to May 2023 and the downward trajectory is reflected in the March to April numbers thereof.  I do not accept the relevance of the May figure as I am satisfied she would only have attended work for two days that first week in May and she sold one car before she was dismissed on 8th May.   

For the avoidance of doubt, I fully accept the Respondent’s assertion that cars is a numbers business.  I note, however, the Respondent did not analyse the data provided depicting the downward trajectory between March and April.  The numbers were not contextualised having regard to variables such as seasonal impact and the fact that the Irish market has two distinct peaks of new car sales, in January and in June, and those peaks stretch out a little into February and March and into July.  I note for example, in 2017 there were 19,890 passenger cars sold in Ireland in the month of March followed by 7,841 in the month of April.  I am satisfied this national downward curve in 2017 is mirrored by the Complainant’s downward curve in 2023.        

However, even if I were to accept the Respondent’s position that this downward curve between March and April is evidence that the Complainant was dismissed for performance issues, and even if I were to accept the Complainant’s failure to achieve the implausible targets allegedly set as a sustainable performance issue, there still remains the matter of fair procedures or in the within case the complete lack thereof.  I struggle to find a modicum of fairness in the manner in which the Complainant was treated.  In this regard I note the Labour Court has consistently set a standard of requiring employers to operate fair procedures during and at the end of employment while an employee is on probation.  I note also in the case of A Pharmacy Technician v. A Pharmacy [ADJ-00022633] the Adjudicator highlighted the right of the complainant, an employee on probation dismissed while pregnant as follows:

“…the Complainant has an implied contractual right of fair procedures.  If it was the case that the dismissal was performance related then the Respondent should have gone through an engagement process with her well before her probationary period was due to expire outlining what was required of her, what improvements were expected and identifiable objectives she needed to achieve.  He should have outlined what assistance he would provide to her in helping her to achieve those objectives and even considered extending the probationary period with the consent of the Complainant.  There was no evidence that any of this process was undertaken by the Respondent.” 

It was the Respondent Managing Director himself who stated in evidence that the Complainant was “mad hot to become a senior salesperson overnight” and I agree with him.  Based on my observations of the demeanour of the Complainant at hearing, it was obvious that she loved her job and that she was ambitious.  She was factual in her recollection and she did not seek to embellish.      She acknowledged her shortcomings when she stated she struggled initially with the finance piece but she was working on it. 

I do not accept the Complainant “ran out of road eventually” as stated by the Respondent.  I find the road was blocked for her by reason of a dismissal for which I can find no “cogent and credible evidence” that this dismissal was not in any way related to her pregnancy.  Dismissal during pregnancy can only be lawful in the most exceptional circumstances.   I find there are many aspects of this case that are inconsistent with a conclusion the Complainant’s dismissal was performance related. 

While it is the Respondent’s position that the dismissal occurred as a result of the Complainant’s underperformance, the evidence as presented does not credibly or cogently demonstrate that this was the sole reason for the Complainant’s dismissal.  Having regard to the totality of the evidence I find that the Respondent has not discharged the burden imposed by the Acts.  Accordingly, I find in favour of the Complainant and she is entitled to succeed in her claim.   

For completeness, it is noted that the Respondent failed to comply with Article 10 of the Pregnancy Directive to provide “duly substantiated grounds in writing” to the Complainant.

Redress:

Having regard to redress, section 82 of the Acts empowers me to award compensation to a maximum of 104 weeks’ remuneration for the effects of an act of discrimination.  In the matter of Lee t/a Peking House v. Fox[EEDO36] the Labour Court held that in calculating such an award regard must be had to

"[the] effects which flowed from the discrimination which occurred. This includes not only financial loss suffered by the Complainant arising from the discrimination but also the distress and indignity which she suffered in consequence thereof”. 

I am cognisant of the case ofMs Svetlana Grodzieka v. Ultra Fresh Services Limited[EDA 232] in which the Labour Court held “the dismissal of a woman due to pregnancy or maternity leave is a breach of a fundamental right guaranteed directly by an EU Directive.  As such, it must be regarded as among the most egregious breaches of employment law.” 

In assessing redress, I note that section 82 allows for an order for compensation for the effects of discrimination.  In accordance with Article 25 of the Recast Directive, compensation must be effective, proportionate and dissuasive.  I award redress of €28,000.00.  This sum is awarded not only to compensate the Complainant for the effects of the discriminatory treatment but also to dissuade the Respondent from discriminatory acts into the future. 

CA-00056701-001

For the reasons set out above I find the Complainant was discriminated against on the grounds of her gender and specifically in the fact of being dismissed whilst pregnant.  I decide this complaint of discrimination on the ground of gender is well-founded.   In accordance with my powers of redress under section 82 of the Employment Equality Act, 1998 I order the Respondent to pay the Complainant compensation of €28,000.00 for the effect of that discrimination.  For the avoidance of doubt, this award is for the infringement of the Complainant’s statutory rights and is not subject to deductions for PAYE, PRSI or USC.  Payment of compensation ordered should be made within 42 days of the date of this decision.    

Pregnancy; pregnancy related dismissal; burden of proof;