March 01, 2023
A pregnant woman was awarded €12,500 on the balance of probability after submitting a complaint to the WRC regarding discrimination under gender and family status grounds.
Key Learnings
This case demonstrates how critical it is to effectively manage a probationary process ensuring at all times that natural justice and fair procedures are applied. Paramount to the protections stemming from the Maternity Protection Acts is ensuring that Employees on any protected leave are kept up-to-date and informed of any changes that are proposed in the Organisation and to their terms and conditions of employment. Employees on maternity leave and pregnant Employees are afforded considerable legal protection, therefore, Organisations must ensure that their decisions take into consideration HR best practice in relation to protected leave.
Background
The Complainant worked for the Respondent from 30th September 2019 until 1st July 2021. She was employed as a property administrator and paid €25,000 per annum.
Summary of Complainant’s Case
The Complainant contends that she was discriminated against as soon as she announced her pregnancy to the Respondent.
The Complainant states that her probationary period ended successfully and that she had been informed of this by her manager. When her line manager left the company in August 2020 and the company owner took over as her line manager, he informed the Complainant that her probationary period had not ended and that she had not in fact passed, and it was at this meeting that the Complainant contends that she was offered €4,000 by the owner to leave the company. The Complainant has stated that at the time of this meeting, she was 7 months pregnant.
The Complainant was advised by the owner that the previous line manager was not happy with her performance and provided the Complainant with a list of mistakes that he had been informed of by the previous line manager. It is the Complainant’s contention that each of the events listed by the owner had taken place after the previous line manager had left and the Complainant feels that they were not her mistakes. At the end of this meeting, the Complainant stated that she was sent home to discuss the offer with her partner. She later phoned the owner and asked what would happen if she refused the offer and was informed, “That is not changing the outcome. You will still be dismissed”. At this point, the Complainant contacted HR and was informed by the Head of HR “If I were you, I would take the money, because we can as well wait until you come back from your maternity and dismiss you two weeks after”. The Complainant refused the offer and returned to work two days later.
The Complainant contends that it was after she returned to work that the owner started to bully her, and this was happening on a daily basis which she mentioned in an email to HR. The Complainant was advised to speak to the owner in relation to the bullying even though it was he who was bullying her.
The Complainant was informed that she would have performance reviews every week directly with the owner until such time as her maternity leave started. Following medical advice from her GP the Complainant commenced maternity leave early.
Prior to her return to work from Maternity Leave the Complainant received a letter from the HR stating that she was still in her probationary period and that on her return she would still have to attend weekly meetings with the company owner and that should her performance not be satisfactory she would receive two weeks’ notice.
On her return to work the Complainant’s place of employment was changed, she had to go through training on a new system and she continued to be given unrealistic tasks to fulfil. The Complainant highlighted that the owner continued to accuse the Complainant of making mistakes, which were not hers.
On her last day in the company, she was invited to a meeting by the owner who informed the Complainant that he was going to record the meeting. The Complainant agreed to this but was never presented with a copy of any recording, what she did receive was a statement of what they had talked about and why she was dismissed.
The Complainant was dismissed and paid two weeks’ pay in lieu of notice.
Summary of Respondent’s Case
The Respondent's case was the Complainant along with all her other colleagues were on layoff from March 2020 for a period of 13 weeks due to the Covid 19 restrictions and were not attending work and therefore the Complainant was unable to complete her probationary period review prior to her return to work. Upon returning to work her probationary review was conducted by her manager on June 22nd, 2020 which related to her work delivered between 30th September 2019 and March 2020 and it was noted that the Complainant was not pregnant during this period.
A further probationary review was held on 20th August 2020 where she was advised that she had failed to reach the adequate level of performance for her role and the Complainant advised her manager of her pregnancy at this point.
A third probationary review meeting was held on 29th September 2020 and memos of the meeting issued on 30th September 2020 and 1st October 2020 by the HR Department listed key areas and objectives for the Complainant to focus on and try demonstrating an improved ability. The meeting also clearly clarified that the Complainant’s probationary period would be paused for the duration of her maternity leave and would recommence when she returned.
The Respondent wrote to the Complainant on 27th May 2021 confirming her return to work date was 8th June 2021 and her probationary period expired on 18th June 2021. The letter reiterated key areas of focus and objectives for the Complainant and outlined the process of a review meeting on 11th June 2021 followed by a final probationary review on 18th June 2021. At both meetings, the Complainant was presented with evidence where she was clearly failing to perform her role and her employment was terminated.
The Respondent maintains that the Complainant’s claims of discrimination and harassment based on her gender and family status are totally baseless and without foundation. They also deny the claims of a settlement offer and being pressurized by her manager and HR to accept it.
The Complainant had been made aware of her performance issues by her manager prior to her becoming pregnant. The Complainant’s probation was in fact extended due to her pregnancy to allow her every opportunity, when in normal circumstances her probation would not have been extended beyond her second review in August 2020 with her manager. The Respondent contended that a fair procedure was followed before dismissal took place and that the employment was terminated due to the Complainant’s inability to perform basic administrative duties to an acceptable standard which was in no way related to her gender or family status.
Findings and Conclusions
The Adjudicator noted that the first probationary review took place on June 4th, 2020 and that it was decided by the line manager to extend the probationary period by up to 3 months. At the next review date on August 20, 2020, the Complainant received a rating of ‘getting there’ in five out of seven headings and a rating of ‘performing well’ in the other 2.
The Adjudicator also noted the Complainant wrote to the HR department on September 30th 2020, referencing her refusal to the offered settlement of €4,000 and that on that same date she spoke with the Group Director of Human Resources and contends she was informed by her over the phone “I would take it if I were you because next time you won’t get any offer and we can dismiss you 2 weeks after your maternity”.
On the same day, 30th September 2020, the Group Director of Human Resources wrote a letter (via email) to the Complainant there was no reference made in this letter to the offer of €4,000 to resign contended by the Complainant, but rather an outline of the process to date and reference that her probationary period had been extended by 13 weeks due to the layoff period.
At the hearing of the complaint, the Respondent stated that the offer of €4,000 was absolutely not made to the Complainant.
On 27th May 2021, the Respondent wrote to the Complainant outlining that she would be returning to work from Maternity Leave on 8th June 2021 and that on her return she would still be on a probationary period of employment for a further four weeks i.e., until 6th July 2021. This letter also pointed out that should her performance not improve to the required standard within a period of two weeks she would be issued with two weeks’ notice.
On her return to work she would now be based in Hospitality House, primarily for training purposes, she would be reporting to the Director, whom she would meet on a weekly basis to review her performance and the improvements required in her performance.
The Complainant contends that on her return to work that she was overly controlled and was constantly on management’s radar.
The Complainant has also contended that at her final meeting with the Director, the minutes were recorded, and the Complainant had agreed to this and to be provided with a copy of the recording. The complainant never received a copy of that recording. The Complainant is of the belief that the reason behind not supplying her with a copy of the recording was the fact that the Complainant had mentioned the offer of €4,000.
The Adjudicator found that there existed many contradictions by both parties in relation to the complaint.
Decision
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that the Adjudicator make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
On the balance of probability, the Adjudicator found that the complaint was well founded and ordered the Respondent to pay the complainant the sum of €12,500 in compensation for the effects of this discrimination.