Complainant

Respondent

Parties

Sabrina  Griffin

Yahoo Emea Limited trading as Yahoo

Representatives

Michael O’Doherty BL instructed by Setanta Solicitors

 Alison Fynes BL instructed by Lewis Silkin Ireland

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-00054773-001

30/01/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 18 of the Parental Leave Act 1998

CA-00054773-002

30/01/2023

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

CA-00054773-003

30/01/2023

The Complainant worked for the Respondents as a credit collection specialist. She originally started as a contractor working for an agency for about two years and then took up an identical permanent job with the Respondent.

Her employment with the Respondent began in January 2022 while she was on maternity leave.

She returned to work on the 2nd of August 2022 following a period of parental and annual leave. At this time, she had a new line manager Ms Zilyte.

Unfortunately, the employment relationship deteriorated from this point. The Complainant alleges that she was unfairly treated and persistently micromanaged. The Respondent submits that she was subject to perfectly normal and reasonable performance management for failing to follow their protocols.

The Complainant was called to a probationary review meeting in December 2022 and dismissed. She was put on garden leave until her actual termination date of the 9th of January 2023.

The Complainant has alleged discrimination on the basis of the family status and penalisation for taking parental leave. She alleges that she was replaced by a different employee, Ms P who had a different family status to her.

Detailed written and legal submissions were made on behalf of the Complainant by her counsel Mr Michael O’Doherty.

She alleges that her treatment following her return from maternity leave in August 2022 was totally different to how she was treated before her leave. They had brought her in house because of her high performance but when she came back she was unfairly criticised for minor issues while she continued to perform well in terms of money being brough in. She was dismissed not long after another colleague had been brought on to the team who replaced her and who she believes didn’t have the same family status as her. She was discriminated against by the Respondent.

Ms Sabrina Griffen gave evidence under affirmation.

She first started working for the Respondent in 2020 as a collection analyst. Her role was to collect money from clients in the French market. She came back from maternity leave in 2022.

Before her leave she was reporting to Ms D with whom she had a very good relationship.  Ms D never raised any issues around the Complainant’s performance as she hit 100% of her collection target most months. The work was entirely through French.

She was still on maternity leave when her contract converted and she became an employee of the Respondent. She then took parental leave at the end of maternity leave. She started back on 2nd of August 2022 and was now reporting to Ms Zilyte.

She immediately noticed a change in the team and the atmosphere at meetings. She felt Ms Zilyte was not approachable and could be quite hostile.

In September 2022 she raised this and asked Ms Zilyte to stop the way she was acting she was with her. Ms Zilyte told her if she had an issue she should raise it with her directly. She never made a formal complaint and didn’t know that she could.

Additional training guidance and coaching was organised for her when she started back at work. This took about three to four hours. She went through a list of items that she had to pick from for refresher training on.

Two other colleagues, Mr A and Ms B, provided some support after this point. But it was limited she had about 2 hours of training with Mr A and even less with Ms B. She did not get consistent support.  

Her role is as credit collections analyst and as part of this role she has to keep good relationship with the customers to ensure that the money is paid. She had the same job before maternity leave.

Issues were raised with her in account reviews however these are not performance reviews. They are routine “to do” meetings.

The Complainant went through documentation related to some of these meetings and the associated issues raised by Ms Zilyte. 

She accepts that the issue of changing account statuses was raised with her on the 12th of August and that she had overview of the status. It is a simple task but an important step in the process. However some accounts status would have been changed before these meetings, Ms Zilyte didn’t check and then would seek updates.

She then referred to two emails sent by Ms Zilyte from the 13th of September 2023. These concerned minor procedural issues. The most important thing is for her to collect the money. The Complainant believed she had always had her own autonomy to deviate from the procedures where necessary.  

On Friday the 21st of October Ms Zilyte followed up with her by email as she had not moved a customer into suspension as had been agreed on Tuesday. The Complainant considered this an issue of initiative, she managed her own ledger and was able to use her own initiative as to when to suspend an account.

On the 4th of November there was an email exchange between the Complainant and Ms Zilyte as the Complainant had been using a customer email address with a typo and the emails were bouncing. The Complainant had been given the wrong email address.

The Complainant referred to another email exchange starting 8th of November where Ms Zilyte had emailed her a list of instructions regarding a client case. Ms Zilyte then followed up again on the 10th as the Complainant had not replied. The Complainant responded that she had been calling the client and that they had promised to pay and she had put a comment on a the system. The money arrived 10 days after but everything was recorded.

On the 18th of November Ms Zilyte emailed the Complainant reminding her that a client should have been put on soft hold and that any exceptions to this process needed to be agreed with her. The Complainant had contacted the client and they indicated that they would pay. She used her own discretion and initiative.

Ms Zilyte also emailed her on the 22nd of November 2022 and outlined other breaches of the process however the Complainant couldn’t remember those examples.

She had no notice that any of these account review meetings were performance meetings however Ms Zilyte was always unhappy with her since she had come back from maternity leave. She was never given any warning that her job was in danger.

The Complainant went through the examples given in the Respondent’s record of the meeting dismissing her. She disputed the substance of some of these complaints regarding her work. In other cases she believes the issues were exaggerated.

She thinks the most important thing was to collect money which she did. The rate of collections is always what effected an employee’s bonus not following the procedure.

She had a higher rate of collections than her colleague Ms P who stayed on the team and she believes replaced her.

She had three appointments with her baby in the hospital during the week of dismissal. One of the issues raised with her at her dismissal meeting was an incomplete task on a half day appointment with her baby at hospital.

The Complainant was cross examined by Ms Alison Fynes BL for the Respondent.

She agreed that the suspensions process is important and that there are certain trigger points if an invoice is overdue for a certain time and that she as collector has to take certain actions according to the “Soft Hold Hard Cut” (“SHHC”) system. This is based on template emails.

She points out that she might also have to speak to the account manager who might ask to hold off putting the account on hold as the client were going to pay.

She agreed she needs to get approval to deviate from these systems.   She accepts that it is clear from the emails that the importance of the SHHC process was emphasised to her. But she believes that the priority is collection and that SHHC is a minor task compared to that.

She accepts she was emailed on the 13th of September and was offered additional training and that Ms Zilyte emphasised that her biggest concern was the SHHC process.  She found that Ms Zilyte was unapproachable. She didn’t raise anything with HR because Ms Zilyte had told her to go to her if she had issues. She accepts there was a grievance policy available to her to review on the intranet, she would have gone to it in the new year if Ms Zilyte’s behaviour didn’t change.

When referred back to the email exchanges around the 20th of September the Complainant accepted she hadn’t resolved all the issues being raised by Ms Zilyte and that a number of invoices were overdue.

She was offered further training in October and attended and again in November.  

She confirmed that she was reminded of the fact she was on probation at the start of account review meetings. While the SHHC brought up on a number of occasions and other action items the Complainant pointed out it wouldn’t be an account review without any comments, the whole purpose is to follow up and manage workload.

She believed she was improving on SHHC and got better over time and was collecting throughout this time.

She was told she was told was brought in house because she was good at collecting.

The Complainant believed she had discretion regarding the SHHC and was showing her initiative when she deviated from the process. She believes Ms Zilyte jumped to conclusions saying something was not done when it was. She did dispute this feedback sometimes. The Complainant had technical issues in October or November 2022. She told Ms Zilyte.  She is not sure how long it went on for. It was not persistent and was one occasion for one account.

Ms McMahon was at the meeting on the 7th of December when she was dismissed. She didn’t challenge that she was on probation as she didn’t know the law at the time. She did not challenge the examples given to her on the 7th of December.  

The Respondent’s counsel made detail written and oral submissions on their behalf.

They submit that this was an entirely ordinary probationary dismissal. There was an error in her contract which failed to contain a probation clause which they were unaware of at the time. The Complainant was given a number of opportunities to improve. The Respondent submitted extensive email correspondence showing the Complainant’s line manager trying to address these issues with her.

Elaine McMahon gave evidence under affirmation.

She is a HRBP for the Respondent’s Irish operation. She is involved in recruitment requisition new roles. During the November/December 2021 there was a decision to bring the Complainant into the Respondent as an employee.

This conversion took place on the 10th of January 2022. She knew the Complainant had a baby at the time as she was still on maternity leave as an agency worker when she joined the Respondent.

Later in November 2022 Ms Zilyte approached her on slack to ask for time to discuss the Complainant’s performance. There were meetings on the 14th, 15th and 25th of November 2022 with Ms Zilyte.

She needed to understand Ms Zilyte’s concerns and how she was measuring the Complainant’s performance. Ms Zilyte was seeing a repetition of the same issues arising again and again.

There was then a meeting in December with a more senior manager overseeing Ms Zilyte.  At this meeting they discussed the Complainant’s performance and that it had not improved.  They considered extending probation but then decided not to. There had been enough time for the Complainant to have corrected the issues she had received enough training. In the circumstances extending probation was not the right call.

The Complainant’s contract would have been issued by the talent acquisition team Ms McMahon has no idea why there was no probation clause. They are normally provided for. The probation period is 6 months with an option to extend.

Ms McMahon had a view that the Complainant’s previous manager and Ms Zilyte were different styles of manager. She believed Ms Zilyte engaged using a “factual” tone but was not aggressive.

The Complainant was going to go on holidays on the 12th of December for two weeks. From a transition perspective it didn’t make sense to hand over and then hand back. As such on the 9th of December they put her on garden leave. This was set out in correspondence.

There was no detailed probationary process in place. There was a general expectation that managers should be regularly checking in with new employees and comparing their performance against available metrics. There is not a standardised process put instead involves an increased level of contact with manager.

Ms McMahon was cross examined by Mr O’Doherty for the Complainant

The dismissal meeting occurred on the 7th of December. They took notes of that meeting but didn’t take notes of the other meetings with Ms Zilyte and other management. These occurred on the 14th, 15th and 25th of November and the 1st of December.  

It was her understanding that the Complainant was on probation. She had not seen her contract at that the point of dismissal. People are put on a probationary period of 6 months up to 9 months.

There is a difference between probationary and post probationary performance management. After probation there are two formal documented formal performance reviews a year. It is a much more flexible during probation.

Ms McMahon never spoke to Complainant directly.  She wasn’t privy to the account reviews. She had no firsthand knowledge of her performance. She relied on Ms Zilyte. Ms Zilyte and her line manager made the decision to dismiss. Ms McMahon advised as the HRBP.

She views the Respondent as very employee centric and their policy initiatives have led the way in many areas such as flexibility, equity and inclusion. She has had a very positive experience working with them and thinks that they treat their employees well.

She acknowledges that the date of dismissal was one day before the Complainant would have reached a year’s service. Is it a coincidence but as a HR practitioner she was aware of the importance of the date. Their driving focus was the Complainant’s performance but she was aware when giving her the 30-day notice that they were coming in under the year.

The way in which performance reviews are done varies team to team.

The Respondent has grievance policy and a HR answers team. These are all available on the intranet.

Irma Zilyte gave evidence under affirmation.

She was EMEA collections manager during the relevant period.

There were five or six collectors. She was aware of the Complainant before she went on out maternity leave and became manager of the team while she was on leave. She arranged onboarding information and training for her when she came back,

There was a new collections software tool called “Get paid.”  This system would prompt collectors as to next steps and when to start suspensions. Part of this process is when a customer doesn’t pay outstanding invoices they block new campaigns. This is the main leverage against customers when they don’t pay up and is what they refer to as the “Soft Hold Hard Cut” SHHC.

Ms Zilyte views this as the biggest process that a collector needs to follow. It is subject to internal audits and is also a way to hold sales accountable for the actual revenue generated from new business. The Complainant had a different view.

Ms Zilyte went through the extensive correspondence provided to the hearing where she was raising tasks that were supposed to have completed, mostly related to the SHHC.

In the hearing Ms Zilyte referred to emails exchanges from the 12th of August 2022, 18th of August 2022 and 13th of September 2022 in which she is either asking the Complainant to follow the SHHC system or offering detailed instructions in how to follow the system properly. These concerned multiple different client accounts.

On the 13th of September she offered the Complainant refresher training. This was one month in after she had started back from maternity leave particularly referencing the SHHC process and that she had again discovered it was not followed with several accounts.

Seven days later she had to follow up on this email, asking her if she had reviewed the policies and that she had noticing another issue. She felt the Complainant’s response to this email was not satisfactory.  

She offered further training on the 11th of October. This was carried out over the next couple of weeks.

Ms Zilyte then went through account reviews on the 27th of September, 4th of October, 11th of October and 18th of October. In each of these she had to bring up the SHHC process not being followed properly.

At the meeting of the 18th they had agreed to put a number of accounts onto suspension. However, the Complainant simply didn’t do this. Ms Zilyte had to follow up with her on the following Friday. In the meantime, the Complainant had gone to sales and after talking to them decided to hold off suspending the accounts. She did not go back to Ms Zilyte or update her. Sales have their own incentives not to suspend accounts as they are trying to meet their own targets which are based on sales and not revenue.

Ms Zilyte referred to her email of the 28th of October. There was typo in an email address. They were bouncing back but Ms Zilyte still had to highlight this issue with the Complainant. Despite the Complainant’s evidence it was not minor. It was lack of attention to detail which effected whether a client was receiving information. Ms Zilyte felt the Complainant’s reply was quite casual and that she shouldn’t have to stay on top of her to ensure basic issues like this are addressed.

Ms Zilyte referred to the account review of the 8th of November where she again had to follow up on a number of SHHC steps which had not been taken.  On the 10th she could see some accounts were still in overdue balance and the appropriate steps hadn’t been taken. One of these involved a significant payment and was a high priority.

She referred to further follow up she had to do with the Complainant on the 15th of November over an account not being put on soft hold.

In general, there was a continuing failure to follow SHHC and Ms Zilyte’s instructions on the Complainant’s part. Where payment was actually in process they needed proof of payment rather than verbal assurance. Ms Zilyte referred to further emails on the 22nd of November and 6th of December where these issues were raised again.

Ms Zilyte was asked to address the allegation that the Complainant was replaced by a colleague Ms P.  The French market always at least two credit analysts. Ms P was hired to replace a different colleague and was a contractor. An entirely different contract had replaced the Complainant while she was on maternity leave. He left because he was looking for permanency rather than contract work.  The team has since been made redundant as their role was taken over by the US operation. Ms Zilyte was made redundant as part of this.

She spoke to Ms McMahon about the Complainant’s performance issues. They had monthly meetings and had brought up the Complainant’s ongoing performance issues. They were actively discussing whether she would pass probation.

She also had meeting with her Line Manager and had been mentioning the same issues. They had a meeting with all three of them there and decided to terminate.

She understood that the Complainant was on probation and that the 7th of December meeting was a probation review.

The typical probation period was 6 months. The determined that they should give her appropriate notice which is normally a month in the Respondent and they were cognisant of her upcoming leave. As such decided to tell her about termination in December.

Ms Zilyte then went through the minutes of this meeting and discussed the examples given for termination.

On the issue of leave for medical appointments, the Complainant was not required to enter one hour or two hours absences into the system as leave. Half days do need to be entered on the system and taken as sick leave or holidays. The Respondent has five uncertified sick leave days fully paid per year. The Complainant chose to enter her absences as a holiday rather than sick leave. Ms Zilyte didn’t tell her to use annual leave.

Ms Zilyte tried to help her the Complainant and does not believe she has an aggressive tone. On one occasion she did email her in capital letters. She was trying to emphasise a certain part of the email. It was one occasion only.

She told the Complainant to approach her if there were any issues but never told her not to approach HR.

Collections not just about the money it is about how the team works and ensuring that the processes are properly followed. Individual cash intake is not a major metric it is primarily used to track the team figures which is what their bonuses are judged on.

The Complainant never brought up any allegation of discrimination.

Ms Zilyte was cross examined by Michael O’Doherty BL for the Complainant.

She believed the Complainant was on probation and assumed that there was a probation clause in her contract. She was a contractor previously and was put on probation when she joined the company.  It is the standard process.

Ms Zilyte did not think this issue had much bearing on the overall situation. She trained the Complainant up and expected her to do her job. Then when she wasn’t performing Ms Zilyte believed she should be terminated. If she was out of probation she would have put her on a PIP which probably would have been more structured than their regular account reviews.

There were 16 meetings between the Complainant and Ms Zilyte. She accepts that these were account review meetings but they did discuss the Complainant’s performance. 

Every exception from the SHHC should have been agreed with Ms Zilyte as she was her manager and was overseeing these processes.

Not all of the issue she raised with the Complainant were significant mistakes or urgent but they were persistent. Ultimately it is normal for a client to be compliant. The collector’s role is to do with dealing with the minority who aren’t.

She disputes that the issue of the email address being incorrect was nitpicking. It was pointed out to Ms Zilyte that the address was one of a number the email was sent to and the main email address was correct. Ms Zilyte accepts that she may have misunderstood this at the time but addresses should be kept up to date and bounce backs resolved.

She was raising SHHC in each meeting with the Complainant on a weekly basis.

Ms Zilyte was referred to an email exchange on the 10th of November which had been cited by the Respondent as an example of her having to follow up with the Complainant. She disputed that she was raising an issue about a matter which was already resolved. The client was promising payment. They had not paid. She was having to follow up with the Complainant who was trying to call the client.  It was a high priority. The client had promised to pay for 10 days but hadn’t.  It was reasonable to ask for an update and she felt the Complainant’s response wasn’t appropriate.

Ms Zilyte had to keep raising the issues and felt she needed to micromanage.

Ms Zilyte accepted that at the last account review she had already decided to dismiss the Complainant. She still needed to monitor her performance while she was working. It would look strange and unprofessional if she didn’t.

When raising the issue of the Complainant not acting with initiative Ms Zilyte elaborated that this concerned her doing the work more proactively and not that she should do the suspension process differently by agreement with sales.

She was never warned that her job was in jeopardy before the dismissal meeting but Ms Zilyte had reminded her she was on probation before.

Ms Zilyte accepts that the Complainant’s collection figures are good but the important part of collections figures was team target. She didn’t go by the individual cash target. The collection rate didn’t factor into decision to let her go.

Regarding the timing of the dismissal there was a degree of time pressure created by the Complainant’s annual leave Christmas season. They wanted to give her a month’s notice. She had had no idea about the minimum time requirements provided for in the Unfair Dismissals Act. It was never discussed at her meetings with Ms McMahon or her manager.

When they gave the Complainant notice they were planning on hiring a second recruiter but then there was a hiring freeze and then redundancies. At the time of dismissal, they weren’t aware they wouldn’t be allowed to replace her. It was not a choice between the Complainant and Ms P.

Complaints CA-00054773-002 and CA-00054773-003

The Respondent’s counsel, Ms Fynes, addressed certain fundamental flaws regarding the Complainant’s claims under the parental leave act and terms of employment information act.

She submitted that the Complainant was never on parental leave, this was not disputed by the Complainant’s representative. The Complainant was on maternity leave and then parent’s leave. Section 16A of the act does not encompass parent’s leave.

The Complainant also raised a complaint regarding the alleged failure for the Respondent to adhere to the maximum probation standards provided for by Section 6D of employment information act. These amendments were not commenced until the 20th of December 2022. This was after the point the Complainant had already failed probation and was on gardening leave.

CA-00054773-001 Employment Equality Act- Direct Discrimination

The Complainant has alleged that the Respondent has discriminated against her because of her family status. The core of her argument is that she had a successful relationship with the Respondent as a contractor and then after she was returned from maternity leave her performance was unreasonably criticised and she was dismissed.

The Complainant was made a permanent member of staff by the Respondent while she was on maternity leave as an employee of a different organisation. If they had any issue with employing her because she was a mother they could have simply avoided employing her.

The Complainant’s dismissal was substantially a decision made by Ms Zilyte. It is, of course, possible for a manager to discriminate against an employee under the guise of performance issues and for that manager to be supported by the company unwittingly. However, I do not think this was the case.

I will not recount the extensive evidence already summarised in the above sections. It is clear that Ms Zilyte was consistently bringing issues to the attention of the Complainant regarding her adherence to the set collections procedure as well as other attention-to-detail issues. She clearly put significant effort into trying to address the Complainant’s performance with a number of emails explaining what needed to be done step by step. The Complainant seems to take the view that these issues were unimportant as she still collecting money successfully for the Respondent. However, it was for management to set out what was important to the business. Ms Zilyte did so on many occasions. The Complainant failed to respond to this direction and was let go during the course of what both parties understood to be her probationary period. There is nothing discriminatory or even unusual about that. Her dismissal seems in no way related to Ms P’s retention and the evidence was that one was not contingent on the other.

The Complainant’s previous manager may have had a different management style or view on the importance of the SHHC process. That is not relevant to the question of discrimination. The Respondent’s talent acquisition team failed to issue a contract with an appropriate probation clause. This is also not relevant to the issue of discrimination. It appears that neither party became aware of the issue until after the Complainant had been dismissed.

On the balance of probabilities, I am satisfied that the Complainant’s dismissal was a performance based probationary dismissal unrelated to her family status.

CA-00054773-001 Employment Equality Act- Indirect Discrimination

After the Complainant had concluded giving their evidence in chief, I notified both parties I was live to a potential issue of indirect discriminatory dismissal. More specifically it seemed possible to me that the fact the Complainant was on maternity leave during the course of her early employment might have meant she was not given the time she would have been given to improve if she had not been. Put simply, I was concerned that because the Respondent seemed to be trying to come in under the 12-month service requirement of the Unfair Dismissals Act, they moved to dismiss rather than give her more time to improve.

My jurisdiction is set out by Section 77 and Section 79 of the Employment Equality Act. The Complainant brought a complaint of discriminatory dismissal by way of Section 77 and my role in conducting a statutory investigation into that complaint is outlined in section 79. The potential issue of the Complainant’s dismissal being viewed as indirectly discriminatory due to a limited probationary period resulting from to her maternity leave is clearly encompassed within my jurisdiction in the context of me carrying out that investigation into her dismissal under this act.  

Ms Fynes was of course right to point out that her client is entitled to fair procedures and be given notice of the relevant issues sot that they are able to put forward a defence. However, I notified her that the issue was live even before she was required to cross-examine the Complainant. I gave the Respondent the opportunity to request an adjournment which they declined.

On review of the evidence, I am satisfied that the timing of the dismissal was to do with Ms Zilyte concluding that the Complainant’s performance was not improving despite her efforts and direction. I think it was further influenced by the upcoming Christmas break and holidays and the Respondent’s policy of giving 30 days’ notice. The role of Ms McMahon and Ms Zilyte’s line manager appear to have been confined to supporting Ms Zilyte’s conclusion.

I note Ms McMahon’s evidence that she was aware of the relevance of the date of dismissal and I think it is reasonable to conclude that any HRBP would try to bring an employee’s termination date under the 12 months if they believe dismissal is going to happen. However, on review of the available evidence, I do not think the Complainant would have remained employed into the new year and given further opportunity to improve if it were not for the impending 12-month service mark.

While I think this issue may have had some bearing on the exact date of the dismissal, I am of the view that dismissal was going to happen at some point in January 2023 either way. I do not conclude that the decision to dismiss was brought forward indirectly because of the Complainant’s maternity leave.

CA-00054773-001

I find that the complaint is not well founded.

CA-00054773-002

I find that the complaint is not well founded.

CA-00054773-003

I find that the complaint is not well founded.