Complainant

Respondent

Anonymised Parties

Manager

Commercial & Industrial Equipment Supplier

Representatives

Mr David McCoy, McCoy Solicitors,

Neal Horgan BL

 Self-Represented

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-00052472-001

30/08/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00052472-002

30/08/2022

The Complainant submitted a complaint against the Respondent for discriminatory dismissal because of her gender and/or marital status and is seeking adjudication by the Workplace Relations Commission under Section 77 of the Employment Equality Act, 1998 

The Complainant alleges that she was dismissed from her position as Manager/Employee, one day subsequent to her employer, the Respondent, being made aware of her pregnancy.

The Complainant also submitted a complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 alleging that she that she was not provided with her terms of employment in writing within two months of commencing employment or during the duration of her employment with the Respondent up until when her employment was terminated on the 13 June 2022 and this is a breach section 7 of the Terms of Employment (Information) Act, 1994.

The Respondent denies that the Complainant was treated less favourably on grounds of her gender and family status contrary to section 6 of the Employment Equality Acts 1998-2015.

In relation to the Complaint made under section 7 of the Terms of Employment (Information) Act, 1994 the Respondent also denies that the Complainant was not provided with any written terms of employment.

CA-00052472-001-Complaint seeking adjudication by the Workplace Relations Commission under Section 77 of the Employment Equality Act, 1998.

The Complainant alleges that her dismissal was discriminatory and related to her gender and/or marital status, and she is seeking redress in the form of compensation as provided for in section 82(4) of the EEA and interest thereof as provided for in section 82(5) of the EEA, whereby she was dismissed from her position as Manager/Employee, one day subsequent to her employer, the Respondent, being made aware of her pregnancy.

The Complainant submits the following issues pertaining to her treatment and dismissal by the Respondent;

•The Respondent discriminated against the Complainant by dismissing her due to her pregnancy.

•The Respondent failed to provide the Complainant with a proper disciplinary process and/ or hearing.

•The Respondent failed to allow the Complainant to question the facts and to present her defence; The Respondent denied the Complainant the right to representation.

•The Respondent failed to hear, investigate, or give value to the Complainant replies to the allegations pitched against her and the sanction of dismissal was disproportionate in all of the circumstances.

The Complainant submits that she commenced employment with the Respondent on the 16 January 2022 in the position of Manager at its premises.

The Complainant further submits that she did not receive any terms and conditions upon starting in the role or a Contract of employment during the duration of her employment with the Respondent.

The Complainant informed the hearing that on commencement of her role as Manager with the Respondent's business, the duties that she was tasked with carrying out did not align with the duties normally expected of a Manger.

The Complaint explained to the hearing that the duties she was expected to carry out related to cleaning the garage and yard and lifting heavy items.

The Complainant stated that she did not receive any training in the duties provided to her and was required at times to engage in driving a forklifts/digger without no training or a licence in circumstances where she had no prior experience in driving forklifts/diggers.

The Complainant explained to the hearing that she was not informed of any Probationary Period but later in the course of her employment she became aware of a three-month probationary period that was seemingly custom or practice within the Respondent's business.

Despite the above, the Complainant further advised the hearing that she felt she was adjusting well to the role.

The Complainant also felt her relationship with her colleagues was cordial.

The Complainant told the hearing that while she felt she worked well with her colleagues and her relationship with them was cordial, she submitted that this was not the case with the Managing Director who she informed the hearing would shout at her.

The Complainant submitted that this type of behaviour made her feel intimidated and harassed by the Managing Director.

In an attempt to find ways to cope with the Managing Directors behaviour towards her, the Complaint submitted that she went to counselling on 03 May 2022 to assist with the stress and anxiety she was feeling at work.

The Complainant advised the hearing that as she begin to experience some problems with lifting due to her pregnancy, she informed a number of her colleague at work of her pregnancy.

The Complainant submitted that she informed the Parts Manager, Sales Manager and Plant Hire Manger of her pregnancy, all of which were in attendance to give evidence on behalf of the Respondent on the date of the hearing.

The Complaint further submitted that she also informed all of them not to disclose this information to the Managing Director of same.

The reason the Complainant choose to inform a number of her colleagues was due to the frequency she would need assistance with certain duties such as heavy lifting due to her pregnancy.

The Complainant gave evidence that she believes the Managing Director for the Respondent became aware of her Pregnancy on the 12 June 2022.

The Complainant gave further evidence on this point that on or about the 12 June 2022, the Complainant learned that the Respondent’s Managing Director, had just become aware that she was pregnant.

In supporting her claim, that the Managing Director for the Respondent became aware of her pregnancy before her dismissal, the Complainant noted that it was common knowledge amongst several of her colleagues that she was pregnant and believes that the Director was informed by one of them shortly before her dismissal.

It is in this context; the Complainant advised the hearing that she felt it was not just a coincident that she was then informed of her dismissal shortly after his discovery of this.

The Complainant also submitted in her view the timing of her dismissal, and her pregnancy along with the Respondent failing to prove to the contrary is sufficient to show that she was discriminated against on the gender ground under the EEA.

The Complainant also stated that the Managing Director prior to her dismissal did not formally raise any performance issues with her that is documented, and she believes this also infers that her pregnancy was a deciding factor in him deciding to dismiss her.

On the morning of her dismissal, the Complainant advised the hearing that an altercation happened in which the Managing Director expressed his frustration at her.

As a result, she accompanied the Sales Manager in the van to carry out offsite duties.

It is in this context the Complainant stated at the hearing that on her return to the office around 3pm, 13 June 2022 the Managing Director approached her, one day or so after she believes he learned that she was pregnant where she was asked to follow him to a room where he provided her with a letter informing her that she was dismissed.

In the letter dismissing the Complainant dated the 13 of June 2022, the Complainant stated the letter contents referred to there being 'many reasons' why her employment was terminated.

The Complainant further advised the hearing that it also stated that they tried to allocate her to different roles none of which met the needs of the business.

In this regard, the Complainant told the hearing the reason provided is vague and did not provide her with any clarity on why she was dismissed.

The Complainant further advised the hearing that she was not provided any prior notice that dismissal was under consideration, nor was she afforded the opportunity to bring anyone to the meeting or to appeal the decision.

The Complainant submitted that on been informed of her dismissal she said she felt shocked, anxious, stressed, and upset as a result of her dismissal.

The Complainant further submitted that after she went to visit her GP after the meeting who advised the Complainant to take sick leave, as the stress and anxiety she was experiencing made the Complainant unfit to attend work.

The Complainants representative submitted that her GP issued a Medical Certificate confirming the Complainant's lack of fitness to attend work from 13 of June 2022 to the 20 of June 2022.

The Complainant representative further submitted that the Complainant subsequently spent 8 days in the hospital from the 20 of June 2022 to the 28 of June 2022 where, sadly, it was confirmed that she had suffered a miscarriage.

The Complainant submitted at the hearing and wanted to make it clear, that the miscarriage she suffered was in no way related to her duration in employment or due to the actions the Managing Director took in dismissing her from her employment.

In addition, the Complainants representative also made clear that in no way were they implying that the miscarriage was brought on or as a result of her been dismissed.

Legal Argument:

The Complainants representative submits that the Respondent discriminated against the Complainant by dismissing her on the basis of her pregnancy: Applicable Directive: Council Directive 92/85/EEC Pregnancy Directive [1992] OJ L348/1 ("the Pregnancy Directive").

The Complainants representative further submits that Article 10 of the Pregnancy Directive provides that:"Member States shall take the necessary measures to prohibit the dismissal of workers, within the meaning of Article 21, during the period from the beginning 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."

In addition, the Complainants representative noted that under the Employment Equality Acts, 1998 — 2017, the definition of discrimination per section 6(1) of the EEA, discrimination:  shall be taken to occur where;

(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as —discriminatory grounds//) which(i) exists,

(ii)           existed but no longer exists;

(iii)          may exist in the future, or

(iv)is imputed to the person concerned"

(2) As between any two persons, the discriminatory grounds (and the description of those grounds for the purposes of this Act) are:

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

1Per Section 8 of the Act: "Discrimination by the employer etc

8 . (1) in relation to — (a) access to employment, (b) conditions of employment, (c) training or experience for or in relation to employment, (d) promotion or re-grading, or (e) classification of posts, and employer shall not discriminate against an employee..."

The Pregnancy Directive, Article 2 (a) "pregnant worker shall mean a pregnant worker who informs her employer of her condition, in accordance with national legislation and / or national practice"

Per Section 85A(1):

On the subject of the Burden of Proof, the Complainants representative further submits that "Where in any proceedings facts are established by or on behalf of the Complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the

Respondent to prove to the contrary."

Section 6 (2A) EEA states: -

 "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."

In support of the Complainants claim, the Complainants Representative highlighted the decision of C-232/09 Danosa v. LKB Lizings SIA [2011] CMLR 45, at 60, the Court stated: "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 pregnant 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"

The Complainants representative also highted the decision of Trailer Care Holdings Ltd v. Healy EDA128, in which the Labour Court found that the employer was guilty of a direct discrimination.

The Court stated: “in every case in which pregnancy related dismissal is in issue, the factual combination of the dismissal and the woman's pregnancy must, in and of itself, place the onus of proving the absence of discrimination firmly on the respondent [employer]"

In addition, the Complainants representative also referred to the decision of Assico Assembly Limited v. Corcoran EED 003/2003,  in which 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." 

In the decision of Ni Mhurchu vAcled Limited T/A Ann Gray's Total Health Pharmacy  , the Complainants representative also cited that similar to the Complainant dismissal, the WRC held that the Claimant was discriminated on the gender ground and that the dismissal was discriminatory as the Respondent failed to discharge the burden on it to show the Respondent did not show that the Complainants dismissal was for "exceptional reasons" unconnected with her pregnancy.  In this context, the Complainants representative submits that like this case, the Respondent did not at any stage cite exception reasons for the Complainants dismissal.

In this regard, the Complainant submits that the Complainant was discriminated on the gender ground on the basis of her employer discovering that she was pregnant and her subsequent dismissal resulting therefrom one or so days later. The combination of the Complainant's dismissal, the timing of the Complainant's dismissal, and her pregnancy is sufficient to show that she was discriminated against on the gender ground under the EEA.

The Complainant further submitted that the Respondent in his letter dismissing the Complainant dated the 13 June 2022 referred to there being 'many reasons' why her employment was terminated but has not outlined any such reasons apart from one. The one reasons referenced the Complainant submits that the Respondent provided in its letter to the Complainant was that "We tried to allocate you different roles during your service. Regrettably, the results did not meet business expectations." On this note, the Complainant submits that the Respondent's one reason provided to the Complaint is vague and does not provide the Complainant with any clarity on why she was dismissed.

In terms of the Complainants work performance, the Complainant states that the issue of her ability to carry out her duties was not brought up at any stage or documented and denies that she was in the course of a Probationary period.

The Complainant further advised the hearing that she was not adequately advised and/ or afforded fair procedures. Specifically, the Complainant informed the hearing that the Respondent has failed to show that the dismissal was on "exceptional grounds" not associated with the Complainant's pregnancy.

The Complainant in support of her claim regarding the need to provide her proper disciplinary process and procedure and/ or hearing taking into account her pregnancy cited: Statutory instrument 146/2000; Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) (Order), 2000.

In summary, the Complainant submitted that the Respondent failed to clearly identify the basis for the flawed procedure invoked. It failed to set out the range of penalties that could have been imposed. The Respondent ordered the Complainant to attend a meeting, providing notice thereof only on that day of the meeting before, notifying the Complaint for the very first time and did not even notify the Complainant of the seriousness of the meeting or the type of meeting that she was attending and what would be discussed.

The Complainant was dismissed during the course of the meeting of the 13 June 2022. She was provided no adequate opportunity to meet these allegations set out in the letter of the 13 June 2022.

The Complainant was not afforded any opportunity to question the reasons for her dismissal or any appeal process whatsoever. No appropriate disciplinary process/ hearing, or appeal was put in place by the Respondent. The Respondent did not invoke a proper disciplinary procedure and dismissed the Complainant one day subsequent of becoming aware of her pregnancy.

Notwithstanding the Complainants position, that the Respondents Managing Director became aware of her pregnancy, the Complainant gave evidence that when she verbally and directly informed him of her pregnancy when he informed her, she was been dismissed, he did not retract the dismissal or make any attempt to set out by way of writing or verbally that the dismally did not relate in any way to the pregnancy.

In this regard, the Respondent failed to allow the Complainant to question the facts and to present her defence and cited Bunyan v United Dominions Trust [1982] ILRM 404."

It is in this context the Complainant argues that the Respondent should have ensured that the Complainant was provided with every opportunity to deal with the allegations against her. In failing to do so, the Respondent failed to allow the Complainant to question the facts and to defend herself properly. As such, there was patent unfairness to the Complainant.

In addition, the Respondent denied the Complainant the right to representation, and cited Flanagan v University College Dublin [1989] ILRM 469 at 475O' Brien v Asahi Synthetic Fibre UD 25/1992 in support of this position.

The Respondent also failed to hear, investigate or give value to the Complainants replies to the allegations pitched against her and cited Dunne v Harrington, UD 166/1979 and Hanlon v Smurfit Kappa Ireland Limited t/a Smurfit Kappa Dublin [2016] ELR 163, in support of its position.

Furthermore, the Respondent gave the Complainant no reasonable opportunity to produce rebutting evidence or to be represented.

The Complainant concludes that the gender ground within the EEA expressly prohibits less favourable treatment on grounds connected to pregnancy, and any unfavourable treatment of an employee on the grounds of her pregnancy will be considered unlawful direct discrimination. It is therefore submitted that the Complainant herein was treated less favourably on the grounds of her gender and pregnancy.

Per Section 6 (2A) of the EEA, the existence of the pregnancy in and of itself is usually sufficient to shift the burden to the employer and the complainant submits that the factual combination of the dismissal and the Complainant's pregnancy in and of itself places the onus of proving the absence of discrimination firmly on the Respondent herein.

Per Section 85 of the EEA, once the complainant has established prima facie evidence of discrimination on grounds of pregnancy, it is for the employer to prove that the dismissal was on the basis of some other non-discriminatory grounds. The Complainant herein has established primary grounds upon which her claim for discrimination on the gender ground is grounded. The burden has shifted to the Respondent. The Respondent has failed to prove that the dismissal was on the basis of some other non-discriminatory grounds, and has failed to discharge the required burden, to show that the dismissal was "...on exceptional grounds not associated with her pregnancy.

The Respondent herein has failed to provide duly substantiated reasons which are "exceptional in nature" for the Complainant's dismissal. As such, it is submitted that the Complainant's dismissal was unlawful.

In the context of redress, it is submitted that the Complainant herein is entitled to redress in the form of compensation, with interest payable thereon, per Section 82 (4) and (5) of the EEA, as a result of her loss of employment and distress, arising out of the Respondent’s discriminatory dismissal of her on the basis of her pregnancy.

Furthermore, in light of the patent breach of fair procedures by the Respondent prior to, during, and subsequent to the Complainant's dismissal, a recommendation should be made in respect of the Respondent's breach of fair procedures.

CA-00052472-002- Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994.

The Complainant states that she did receive a contract of employment nor terms of employment from the Respondent.

The Complainant further states that she was not provided with her terms of employment in writing within two months of commencing employment or during the duration of her employment with the Respondent up until when her employment was terminated on the 13 June 2022 and this is a breach section 7 of the Terms of Employment (Information) Act, 1994.

CA-00052472-001-Complaint seeking adjudication by the Workplace Relations Commission under Section 77 of the Employment Equality Act, 1998.

The Respondent had not provided any documentary evidence or filed a written submission in response to the Complainants complaints and choose to give its submission verbally on the date of the hearing.

The following is a summary of the Respondents verbal submission to the complaint CA-00052472-001 under Section 77 of the Employment Equality Act, 1998.

On the date of the hearing the Managing Director and three witnesses for the Respondent gave evidence.

The Respondents Managing Director denies that the Complainant was treated less favourably on grounds of her gender and family status contrary to section 6 of the Employment Equality Acts 1998-2015.

The Respondents Managing Director set the scene that the Complainant was dismissed based purely for performance reasons as opposed to any connection or reason related to her pregnancy.

It was described at hearing by the Respondent Managing Director that the dismissal resulted from an unsuccessful probation period that was as a result of ongoing performance issues.

The Respondent Managing Director accepted at the hearing that the dismissal was not prefaced by a discussion, performance appraisal records or notice that dismissal was inconsideration.

The Respondent Managing Director gave evidence however that he had informed the Complainant verbally a number of times over the course of her employment that he was not happy with her performance in relation to certain duties.

The Respondent Managing Director submitted that while the Complainant had contended that she had not been trained properly, it was clear that these performance related issues had arisen before she had notified the Respondent of her pregnancy.

The Managing Director further submitted that during the interview process the Complainant informed him that she could drive a tractor which he said turned out to be false.

The Managing Director told the hearing that, he did not come aware of the Complainants pregnancy, until shortly after he informed her of her dismissal on the 13 June 2022.

The Respondent Managing Director further told the hearing on this point that while the Complainant stated that she informed a number of colleagues at work of her pregnancy and that he also became aware on the 12 June 2022, he maintains that he was not informed in the lead up to her dismissal and this also reflects the Respondent stated through the Complainants own evidence that she informed her colleagues not to tell the Managing Director of same.

In support of the Respondents position, several witnesses which were employed in various roles in the lead up and at the time of dismissal gave evidence to support the claim that at no stage did they inform the Managing Director of the Complainants pregnancy.

The three witnesses in this regard for the Respondent were the Parts Manager, Sales Manager and Plant Hire Manger, all of which gave evidence after the administration of the affirmation.

The Parts Manager, Sales Manager and Plant Hire Manger, all of which gave evidence on behalf of the Respondent stated that while they all accepted it was common knowledge amongst all of them that the Complainant was pregnant, they all gave the same evidence that the Complainant requested that they do not inform the  Managing Director and in respect to her confidentiality and request, all three witness for the Respondent told the hearing that they did not inform the Managing Director of her pregnancy at any stage up until the point of her dismissal.

During cross examination, all three-witness maintained that at no stage did they inform the Managing Director of the Complainants pregnancy.

On this note, the Respondents Manging Director maintains that he only learned of the Complainants pregnancy shortly after informing her of her dismissal on the 13 June 2022. 

The Sales Manager for the Respondent gave evidence that in and around two hours after her dismissal, he observed the Complainant informing the Managing Director of her pregnancy.

The Managing Director told the hearing that while he was shocked to learn of this, the intent to dismiss the Complainant still stood and the reason he continued with dismissal was purely related to her performance issues and unrelated to her pregnancy as opposed to any connection or reason related to her pregnancy.

The Respondent Managing Director further contends that regardless of her gender, the same action would have been taken against any other employee experiencing such difficulties in the performance of their duties.

While the Respondent Managing Director did not dispute that the dismissal was not prefaced by a discussion, or through performance appraisal records or notice that dismissal was inconsideration, he informed the hearing that he maintained that he did inform the Complainant several times verbally that he was not happy with her performance in the role.

A further reason, the Respondent Managing Director told the hearing that the dismissal was not prefaced by a discussion, or through performance appraisal records or notice that dismissal was in consideration was that his approach to manging the company is in a way that is more like a family, and he takes a more humanistic approach to dealing with performance issues or any other issues his employees may be dealing with.

He believes up until this issue arose with the Complainant, his approach to how he ran the company and his informal approach to engaging with staff has served him and the company well.

Nonetheless, on the more formal matters the Respondent Managing Director informed the hearing that he did have documentation that supports his position that the Complainant dismissal was related solely to her performance.

However, in his reasoning for not submitting this documentation prior to or on the date of the hearing despite having an opportunity to do so, the Respondent Managing Director advised the hearing that based on how clear it is in his view that the dismissal of the Complainant relates to performance issues, he did not feel there was a need to produce any documentation, as he felt he had already adequately demonstrated that the Complainants dismissal was genuinely related solely to performance matters.

The Respondent Managing Director further informed the hearing that while he is not making any request to submit documentation at the hearing or post hearing, he stated that in the event the Adjudicator was to find in favour of the Complainant, and he needed to appeal the decision to the Labour Court, it is only then that he would bring any documentation he believes is relevant that will support and demonstrate further that the dismissal of the Complainant related solely to her performance and not because of her pregnancy.

In this regard, the Managing Director for the Respondent submits that following another incident on the 13 June 2022 in which he was yet again not happy with the Complainants performance, it was decided by staff, that she would assist another colleague in offsite duties.

On her return after lunch time on the 13 June 2022, the Managing Director gave evidence that he asked the Complainant to attend a meeting privately in an office.

It is in this meeting the Respondent advised the hearing that he informed the Complainant that she was been dismissed due to her performance which was accompanied by a letter stating the same.

The Respondent also advised the hearing that the reasons he cited in the letter on the 13 June 2022 in his view provided adequate reason for why he came to the decision to dismiss the Complainant and believes that it is sufficient to show that she was not discriminated against on the gender ground under the EEA.

In addition, the Managing Director for the Respondent explained to the hearing that on learning of the Complainants Pregnancy, which was on the same date of the dismissal, the Director for the Respondent told the hearing that despite there been a requirement to cite and provide exceptional reasons and circumstances for a dismissal during pregnancy, he felt the reasons he stated in the letter were still sufficient.

In cross examination, when the question was put to the Respondent Managing Director if he at any point reconsidered the dismissal, taking into consideration that some of the duties the Complainant allegedly could not perform were not due to her lack of ability, but more so because she was pregnant, the Respondent stated that his position was still to dismiss as again he believed the reasons, he choose to dismiss were strictly performance issues and in no way related to the Complainants pregnancy, therefore he choose to continue with the dismissal on the 13 June 2022.

In support of its position the Managing Director for the Respondent also gave evidence that when he was contacted by a representative on behalf of the Complainant in and around a month after the dismissal, he did make a suggestion of the Complainant returning to work for the Respondent but in a different role but to the best of his knowledge this offer was not accepted by the Complainant.

The Respondent Managing Director stated that the specially protected position of pregnancy is not absolute, and that the Complainant was in a probationary period and such the exceptional circumstances arising that existed in his view were due to the very serious concerns he had with the Complainant’s performance and not in any way related to her pregnancy.

In further support of its position, the Respondent Managing Director also informed the hearing that he had previously had pregnant employees who worked for him without issue and who also continue to work with him after pregnancy.

In closing, the Respondent denies that the Complainant was treated less favourably on grounds of her gender and family status contrary to section 6 of the Employment Equality Acts 1998-2015.

CA-00052472-002- Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994.

The Respondent had not provided any documentary evidence or filed a written submission in response to the Complainants complaints and choose to give its submission verbally on the date of the hearing.

Th following is a summary of the Respondents verbal submission to the complaint CA-00052472-001 under section 7 of the Terms of Employment (Information) Act, 1994.

In relation to the Complaint made under section 7 of the Terms of Employment (Information) Act, 1994 the Respondent Managing Director denies that the Complainant was not provided with her Terms and Conditions or in further detail a Contract of Employment.

The Respondent Managing Director stated that the Complainant was informed and had access to her Terms and Conditions each time she would clock in on an online Application each employee for the Respondent used to record working hours.

The Respondent submitted that he had documentation in this regard as proof that the Complainant was provided with information in relation to the Complainants terms of employment which included information in relation to her rights and her role.

However, in his reasoning for not submitting this documentation or presenting this information on the date of the hearing, the Respondent informed the hearing that in the event the Adjudicator was to find in favour of the Complainant, and he needed to appeal the decision to the Labour Court, it is only then that he would bring any documentation that he believes is relevant that will support and demonstrate that the Complainant was provided with information that relates to her terms and conditions and  a contract of employment.

CA-00052472-001-Complaint seeking adjudication by the Workplace Relations Commission under Section 77 of the Employment Equality Act, 1998.

The relevant Law and the Burden of Proof.

The first complaint is brought under the Employment Equality Act,1998 and relies majorly on the question of a Discriminatory Pregnancy Related Dismissal.

Accordingly, certain key legal considerations arise and specifically in relation to the burden of proof in a Discriminatory Dismissal/Pregnancy case.

Firstly, Section 85A of the Acts sets out the burden of proof which applies to claims of discrimination and requires the Complainant in the first instance to establish, facts from which discrimination may be inferred. It is only where such a prima facie case has been established that the onus will then shift to the Respondent to rebut the inference of discrimination raised.

The first consideration on this note must be whether or not the Complainant can in the first instance establish that a prima facie case of discrimination occurred.

As often stated, “mere assumptions” are not sufficient. The decision of the Labour Court in Southern Health Board v Mitchell still remains the leading decision on the shifting of the burden of proof. The Court considered the extent of the evidential burden which a claimant must discharge before a prima facie case of discrimination can be made out:

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

It is only if 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.”

The second consideration is then the question of the burden of proof in a Pregnancy Discrimination case.

Bolger, Bruton and Kimber in Employment Equality Law -Round Hall Press 2012 at Section 2-222 is worth quoting.

The case law regarding the 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. As a result, 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 the pregnancy.

In plain English basically the burden of proof shifts to the Respondent Employer to prove that the alleged Discriminatory dismissal was not related in any way to the Pregnancy.

European Law

Section 10 of the Directive Pregnancy Directive 92/85 is relevant -this requires an employer to cite “duly substantiated grounds in writing” where a pregnant worker is dismissed.

In EDA 195 Teresa Cross (Shanahan) Croc’s Hair and Beauty & Helen Ahern the Labour Court stated clearly the European Law applicable. It is also worth quoting in full

·         -Protection of Women during Pregnancy

It has been made clear by the European Court of Justice that since pregnancy is a uniquely female condition less favourable treatment on grounds of pregnancy constitutes direct discrimination on grounds of gender - decision in Case C-177/88Dekker v Stichting Vormingscentrum voor Jong Volwassenen (VJV-Centrum) [1990] ECR 1-3941.

Since the decision in Dekkerthe the protection afforded to pregnant women in employment has been strengthened substantially in the case law of the CJEU and in the legislative provisions of the European Union. Furthermore, equality on the gender ground 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 Directive 92/85/EEC constitutes unlawful discrimination for the purpose of that Directive.

In Case 406/06Paquay v Société d'architectes Hoet + Minne SPRL[2007] ECR 1-8511, the Court 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 of its judgment in Paquay. Here the Court said: -

However, the objective is to arrive at 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).

It is necessary to recall that, in accordance with Article 12 of Directive 92/85, Member States are  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.

Article 10(3) of Directive 92/85 specifically states that Member States shall take the necessary measures to protect pregnant workers or those who have recently given birth or are breastfeeding from the consequences of dismissal which is unlawful by virtue of paragraph 1 of that provision.

At paragraph 49, the Court continued: -

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.

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 until 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 as in the Respondent bears the burden of proving, on cogent and credible evidence, that such treatment was in no sense whatsoever related to her pregnancy.

This is a matter that the Court will consider further in addressing the application of the burden of proof in cases such as the instant case.

However, all cases rest on their own facts and evidence and we need to consider these.

Examination of Evidence presented.

In examining the evidence presented both orally and in writing, the key questions that must be examined is if a prima facie case of discrimination can be established?

Was the Pregnancy of the Complainant a determining discriminatory factor in her selection for dismissal?

Is there a prima facie case of discrimination?

Case law here, particularly where Pregnancy related dismissal is being considered, is quite clear. The fact of being pregnant is sufficient grounds for a prima facie case to be made.

However, It does not mean that a case of Discrimination is being finally proven just that the case can be considered.

As referenced above it also shifts the Burden of Proof to the Respondent employer.

It is accepted, on these grounds, that a prima facie case exists.

Pregnancy and dismissal/ The facts of the case as presented.

Firstly, knowledge of her pregnancy lay with a number of colleagues some of which gave evidence on behalf of the Respondent on the date of the hearing.

I do not accept that the confluence of clues about her pregnancy constitutes notification to the employer, and alone they would not constitute prima facie evidence of discrimination , but when combined with the fact of her pregnancy, a total absence of any documentation relating to her performance or reference of dismissal until knowledge of her pregnancy was in circulation in the workplace, and an absence of consultation about her dismissal leads me to conclude that this combination does raise an inference of discrimination on grounds of gender and the onus now moves to the Respondent to rebut the presumption of discrimination.

In addition, the undisputed primary fact was that on the 13 June 2022 the Complainant was verbally informed by the Director that she was being dismissed.

This I note was accompanied by a letter which set out very vague reasons as to why she was been dismissed.

For example, in the dismissal letter dated 13 June 2022, the Respondent cites that there are many reasons for her dismissal but does not cite what any of these reasons are.

In addition, the letter states that they held a number of meetings highlighting the issues they had with the Complainant, yet again does not cite what those issues exactly are in relation to.

Furthermore, no documentation was submitted or furnished at the hearing that would support the contents of the dismissal letter and indicate that the issue the Respondent had with the Complainant was more so related to her performance during her tenure with the Respondent rather than her pregnancy.

In this regard and from the evidence presented it did not appear that any warning had been given of this decision or prior consultation/consideration that was documented of alternatives etc that had been given.

I also note the Managing Directors evidence that when he allegedly was informed that the Complainant was pregnant shortly after providing her with her letter of termination, he did not reconsider, reverse, or delay his decision, considering the Complainants pregnancy.

On further note, the Managing Director for the Respondent did not present to me any evidence that at this stage he took stock to reconsider that the duties the Complainant could not do in his view were not due to her lack of ability to perform such duties, but rather due to her pregnancy.

On that note, I find that the evidence is sufficient to raise a presumption of discrimination. 

As a result, the responsibility for proving that discrimination did not occur shifts to the Respondent.  This is the starting point for this case.

Has the respondent rebutted the presumption of discrimination?

The Burden of Proof rests here with the Respondent, the pregnancy was the prima facie case, to establish that the dismissal was not related to the Pregnancy.

Under Article 10 of the EE Directive the employer must cite duly substantiated grounds for dismissal in writing.

For ease I quote

Article 10         Prohibition of dismissal

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

1. Member States shall take the necessary measures to prohibit the dismissal of workers, within the meaning of Article 2, during the period from the beginning 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;

2. 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;

3. Member States shall take the necessary measures to protect workers, within the meaning of Article 2, from consequences of dismissal which is unlawful by virtue of point 1.

While I note that the Respondent Managing Director did state that he did have documentation that supports his position that the Complainant dismissal was related solely to her performance, he did not produce this documentation despite having an opportunity to do.

I also further note that in his reasoning for not submitting this documentation prior to or on the date of the hearing despite having an opportunity to do so, the Respondent Managing Director advised the hearing that based on how clear it is in his view that the dismissal of the Complainant relates to performance issues, he did not feel there was a need to produce any documentation, as he felt he had already adequately demonstrated that the Complainants dismissal was genuinely related solely to performance matters.

The Respondent Managing Director further informed the hearing that while he is not making any request to submit documentation at the hearing or post hearing, he stated that in the event the Adjudicator was to find in favour of the Complainant, and he needed to appeal the decision to the Labour Court, it is only then that he would bring any documentation he believes is relevant that will support and demonstrate further that the dismissal of the Complainant related solely to her performance and not because of her pregnancy.

In this regard taking that the Letter of the 13 June 2022 to the Complainant was the very bare and absolute rock bottom minimum required to “cite grounds in writing” the case comes back to the evidence given.

I am not satisfied by the Respondents evidence that pregnancy was not an influential factor in the Complainants dismissal in that this dismissal was not prefaced by a discussion, performance appraisal records or notice that dismissal was inconsideration.

In addition, the Respondent Managing Directors evidence was that the dismissal was due to the Complainant, ongoing performance issues.

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 also 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 period was not satisfactory due to performance issues, yet no documentation was presented to support this position either.

In the normal course of a probation, performance issues should be 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.

On further note, there was no documentation submitted that demonstrated that there was even a probation period and process in place with the Respondent.

Overall, the evidence giving by the Respondent that the dismissal was performance related was not supported by any documentation relating to her performance, or during her alleged probationary period, nor was there any reference of dismissal until knowledge of her pregnancy was in circulation in the workplace, and an absence of consultation about her dismissal.

This leads me to conclude that the Complainants pregnancy was a deciding factor in her dismissal.

Summary and Final Conclusions.

In this regard, the final Adjudication decision was one of weighing the balance of Probabilities derived from the key facts such as the knowledge/lack of knowledge by the Respondent of the pregnancy.

After careful consideration of all the evidence, both oral and written, I am of the view that the Respondent had not sufficiently established that there was no link to the Complainant’s Pregnancy in her dismissal.

It is accepted that the Burden of Proof or Rebuttal is very high in these types of cases.

While the Respondent Managing Director may have felt his offer of a different employment to the Complainant some weeks after the dismissal was sufficient to the Complainant, this is not an acceptable excuse in a Pregnancy discrimination case.

As stated above the Burden of Proof from both Ireland and Europe is that in a Pregnancy discrimination situation a very detailed case must be made to the Complainant to justify an ending of employment and that there are exceptional circumstances not associated with pregnancy and maternity. In such cases the employer is legally obliged to give substantiated grounds for the dismissal in writing to the employee.

Quite frankly this did not happen, and the Respondent has failed to comply with Article 10 of the Pregnancy Directive to provide “duly substantiated grounds in writing” to the Complainant.

On those grounds, I find that the failure of the Respondent to provide written details to the Complainant that her dismissal was for substantial grounds not connected with her pregnancy and this leads me to find that this was a discriminatory dismissal based on the Complainant’s gender. 

The Respondent in this regard has failed to prove that the Complainant’s dismissal was unconnected with her pregnancy.

The Legal position is clear cut and the case for Discrimination on Pregnancy grounds must stand.

Accordingly, I find in favour of the Complainant, and she is entitled to succeed in her claim.

In view of this finding, the Complainant is entitled to redress that is effective; that has a genuine dissuasive effect with regard to the employer; and that is commensurate with the injury suffered by her.

Section 79(6) of the Employment Equality Act 1998 requires that I make a decision in relation to this complaint in accordance with the relevant redress provisions under Section 82.

I have concluded my investigation and based upon the aforesaid, I find that after very careful consideration of all the evidence both oral and written I came to the Legal conclusion that the case for Discrimination of Grounds of Pregnancy has been made.

The Respondent rebuttal arguments were not such as to completely rule out a reasonable probability of a Discriminatory link.

Therefore, pursuant to Section 82, I order the Respondent to undertake the following:

Within 42 days of the date herein, pay the Complainant €25,000 compensation in relation to her dismissal. I have arrived at this award having regard to the effects of discrimination on the Complainant who was clearly very upset at her dismissal during her pregnancy and also having regard to the requirement pursuant to Article 17 of the Framework Directive that the sanction be “effective, dissuasive and proportionate”.

Whilst such discrimination might well merit a higher award, given the relatively short tenure of the Complainant’s employment, I have limited the award to the above.

Given the lack of application, documentation and training of staff apparent in the instant case, pursuant to Section 82(1)(e) of the Acts, I deem it necessary to further order that the Respondent to conduct a review of its procedures in relation to its employment policies, including a requirement that its staff undertake such training as is necessary to ensure that it is in compliance with the Acts with reference to the gender ground.

This is an award of Compensation and not related to any issues of renumeration or salary.

I did not see any compelling evidence to sustain a claim for Discrimination on the Family Status grounds.

CA-00052472-002- Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994.

The Terms of Employment (Information) Act 1994 requires that an employer must provide his/her employee with a written statement of the particulars of the employee’s terms and conditions of employment.

Furthermore, redress in the Act is described as follows at Section 7(2):

A decision of an adjudication officer under section 41of the Workplace Relations Act 2015 in relation to a complaint of a contravention of sections 3, 4, 5, 6or 6C shall do one or more of the following, namely—

(a) declare that the complaint was or, as the case may be, was not well founded,

 (d)in relation to a complaint of a contravention under change section 3, 4, 5, or 6, and without prejudice to any order made under paragraph (e)  order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks ’remuneration in respect of the employee’s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977.

 (e) in relation to a complaint of a contravention under section 6C, and without prejudice to any order made under paragraph (d), order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks ’remuneration in respect of the employee’s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977.

The Respondent did not accept that the Complainant never received her written terms of employment or a contract of employment.

In this regard, I note however that the Respondent did not provide any documentation by way of submission or in its evidence that demonstrates the Complainant did receive at any stage of her employment her written terms of employment or a contract of employment.

I further note in the Respondents reasoning for not submitting this documentation, the Respondent informed the hearing that in the event the Adjudicator was to find in favour of the Complainant, and he needed to appeal the decision to the Labour Court, it is only then that he would submit documentation that he believes is relevant and that will support and demonstrate that the Complainant was provided with information that relates to her terms and conditions and contract of employment.

Based on the evidence giving by the Complainant and the failure of the Respondent to produce documentation or evidence that would rebut the claim made by the Complainant, I find that the complaint is well founded and that the Respondent pay the Complainant the sum of €1000.

CA-00052472-001-Complaint seeking adjudication by the Workplace Relations Commission under Section 77 of the Employment Equality Act, 1998.

Section 79(6) of the Employment Equality Act 1998 requires that I make a decision in relation to this complaint in accordance with the relevant redress provisions under Section 82.

I have concluded my investigation and based upon the aforesaid, find that after very careful consideration of all the evidence both oral and written I came to the Legal conclusion that the case for Discrimination of Grounds of Pregnancy has been made.

The Respondent rebuttal arguments were not such as to completely rule out a reasonable probability of a Discriminatory link.

Therefore, pursuant to Section 82, I order the Respondent to undertake the following:

Within 42 days of the date herein, pay the Complainant €25,000 compensation in relation to her dismissal. I have arrived at this award having regard to the effects of discrimination on the Complainant who was clearly very upset at her dismissal during her pregnancy and also having regard to the requirement pursuant to Article 17 of the Framework Directive that the sanction be “effective, dissuasive and proportionate”.

Whilst such discrimination might well merit a higher award, given the relatively short tenure of the Complainant’s employment, I have limited the award to the above.

Given the lack of application, documentation and training of staff apparent in the instant case, pursuant to Section 82(1)(e) of the Acts, I deem it necessary to further order that the Respondent conducts a review of its procedures in relation to its employment policies, including a requirement that its staff undertake such training as is necessary to ensure that it is in compliance with the Acts with reference to the gender ground.

This is an award of Compensation and not related to any issues of renumeration or salary.

I did not see any compelling evidence to sustain a claim for Discrimination on the Family Status grounds.

CA-00052472-002- Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994.

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

For the reasons outlined above in my findings, I find that the Complainants complaint was well founded, and I direct the Respondent to pay the Complainant compensation of €1000.

As outlined at the hearing, both decisions can be appealed to the Labour Court within 42 days of the date of issue. If either party decides to appeal, it is important that they bear in mind this strict timeframe for appeals.

Dated:   01 March 2023

Workplace Relations Commission Adjudication Officer: Paul McKeon

Employment Equality, Discriminatory Dismissal, Pregnancy, Gender