22 Jan Dismissal Was Not Due To Redundancy & Related to Complainant’s Pregnancy
A recent decision of an Adjudication Officer under the Employment Equality Acts 1998 – 2015 found that the Complainant had made a prima facie case of discrimination on grounds of gender, and had been dismissed due to her pregnancy and not due to reasons of redundancy as purported by the Respondent Company.The Complainant was awarded €14k compensation.
It is clearly established through legislation and case law at both European and National level that any dismissal of a pregnant employee must clearly not be linked to the pregnancy of the employee and must be justified on exceptional circumstances. This case illustrates well how a Respondent employer was not able to present any credible or robust evidence to support it’s dismissal of a pregnant Bar Manager on grounds of redundancy, and which resulted in an award of €14k being made to the Complainant who had only 5 months service with her employer from April – September 2017. The claim was taken under Section 77 of the Employment Equality Act 1998.
The Complainant outlined that she was the Bars & Restaurant Manager and had passed her probationary period. She submitted that she had a difficult pregnancy which caused absences from work in the May – July period, as well as being absent for a week due to her grandfather’s death, just prior to her dismissal. The Complainant said she advised the GM on the 5th September that she was seven months pregnant, but later that day was asked by another manager if she was eating too much Supermacs or was she expecting. The Complainant said she was visibly pregnant at this stage, and later that day was called to a meeting with the GM and the HR & Training Executive and told her position was being made redundant due to budget and forecasting issues as a result of refurbishment work that was being carried out. The Complainant said she was told to keep the conversation confidential and that she would be paid one month’s notice. The Complainant told the hearing that despite the alleged financial difficulties the refurbishment continued and the projections they used to dismiss her were unrealistic after only 5 months service. The Complainant confirmed that all her absences had been certified and that she thought she had miscarried, which she had informed the Respondent of on 20th July 2017.
The Respondent denied that the Complainant was visibly pregnant and said they had been informed in July that she had miscarried, and that they had also issued her with a disciplinary warning for unexplained absences from work. The Respondent further denied that the Complainant told the GM that she was pregnant on the 5th September 2017. The Respondent also said that they had taken advice from their HR Department on the redundancy procedure and had offered one months notice which was in excess of the week’s notice that the Complainant was entitled to.
The Respondent categorically denied that the Complainant had been dismissed due to her pregnancy and said the decision to make her redundant had been made on the 28th August 2017, and they would not have made her redundant if they were aware of her pregnancy and that would have been “ludicrous”. The Respondent further stated that the decision was based on economic grounds only and they had decided to revert to the previous structure of using duty managers which was in place before the Complainant’s new role was put in place in April 2017.
The Adjudicator declared that the Complainant had established facts sufficiently to raise an inference of discrimination and therefore the burden was on the Respondent to prove that there were exceptional circumstances unrelated to the pregnancy that would justify the dismissal. The Adjudicator noted that the actual revenue figures submitted at the hearing showed that revenues were increasing on a month on month basis, and in June 2017 had actually exceeded the forecast. It was further noted that the Complainant was the only person made redundant with no other redundancies in the period from 1st August 2017 to 31st April 2018, and that no alternative positions that were available were offered to the Complainant at the time she was made redundant. There was also no consultation or proper redundancy process followed despite the fact that the dismissal had been contemplated for some time and the existence of a procedure in the Team Members Handbook.
The Adjudicator concluded that no genuine redundancy existed at the time of the Complainant’s dismissal, and that the dismissal was tainted with discrimination and her pregnancy was a significant factor that contributed to her dismissal. The Respondent failed to discharge the burden of proof required to establish that there were exceptional circumstances justifying the dismissal that were not connected to her pregnancy. The Adjudicator ordered the Respondent to pay the Complainant €14,000 compensation in relation to her dismissal which was discriminatory. The Adjudicator noted that such discrimination might have merited a higher award, were it not for the short service of the Complainant.
(Ref ADJ – 00013503)