The complainant who commenced work on 11th November 2013 alleged that her Manager had subjected her regularly to unwanted sexual advances from the end of November onwards when she was out of sight of other employees. The complainant found out that she was pregnant on the 9th January 2014 and informed another manager that she had a medical appointment on Friday 10th January. On her return to work the complainant informed her manager that she was pregnant who then asked her for a doctor's note even though a note was only required after two days absence. The complainant worked on the 11th and 12th January for Friday 10th January and then gave her manager the sick note on 13th January as well as a note from her Doctor confirming her pregnancy. The complainant said that her manager called her that evening and told her she was sacked and to come in the following day if she wanted to know why.
The complainant said that she went in to her workplace at 6.00 pm on January 14th and her manager referred to an incident which had resulted in a formal complaint from a customer in early January when a customer did not receive all the food she had ordered. The complainant said that this was the first time this matter was brought to her attention as an issue and claimed that she had only been dismissed because she was pregnant and because her manager had sexually harassed her.
The employer responded to say that there were a number of performance issues brought to the attention of the claimant when she was still under probation and they showed several diary entries regarding her poor attendance record as well as referring to customer complaints and her inflexibility as she had started to study and could no longer work after 6:00 pm. There was also another issue where a customer had not paid for their food as the transaction had not gone through and this had not been noticed by the complainant.
CCTV footage was also presented by the employer showing that the behaviour of the complainant was not consistent with that of someone who was being sexually harassed on a regular basis and showed an amicable conversation with her manager that lasted some considerable time.
The Equality Officer found that the complainant had not established a prima facia case that she was sexually harassed . The accounts presented were conflicting and there was no supporting or corroborative evidence to her own testimony with the CCTV evidence not being compatible with the complainant's account of the alleged harassment.
On the contrary it was found that the employer had not provided evidence to support their contention that the manager had told the complainant repeatedly that her performance needed to improve and that she was at risk of losing her job. There was also doubt cast over the validity of the diary entries presented as evidence and the adjudicator said that it could only be concluded that the dismissal happening so soon after the complainant made her employer aware that she was pregnant spoke for itself. The adjudicator determined that an unfair or discriminatory dismissal could reasonably be inferred and that the employee had been discriminated against on grounds of gender based on her pregnancy related dismissal. An award of €7,000 was made.
Whilst it is illegal to discriminate against someone in respect of any aspect of their terms and conditions of employment because of their pregnancy this particular case also again highlights the need to follow due process in respect of probationary period dismissals and in all cases employees must be informed of the particular performance/attendance issues that may be putting their job at risk and given an opportunity to rectify the situation.