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Claim of Discriminatory Dismissal During Probation Successful Despite Employee’s Unsatisfactory Performance

The case of Sandra Varian v Zahra Publishing Limited ADJ-00036775 came before the Workplace Relations Commission (“WRC”) recently. In this case the Complainant, Ms Varian, claimed that she was discriminated against and dismissed due to her gender and family status, in contravention of the Employment Equality Acts 1998 – 2015 (the “Acts”). Zahra Publishing Limited (the “Respondent”) claimed that the Complainant was dismissed during her probationary period, due to poor performance.

Facts: The Complainant commenced employment with the Respondent on 1st July 2021 as Group Sales Manager. 

The Complainant claimed that on 8th May 2021 she telephoned the CEO of the Respondent to request information on the maternity benefits available to employees, explaining that she was undergoing IVF treatment. This was denied by the CEO who claimed that when, on 5th August 2021, the Complainant informed him she was pregnant and due to go on maternity leave in January 2022, he was surprised but happy for her. 

Evidence was given on behalf of the Respondent about a number of conversations between the Complainant and both the Commercial Director and the CEO relating to her performance. She was not meeting targets set by the Respondent and her sales figures were regarded as poor. She was informed that her employment may be terminated if her performance did not improve. It was accepted by both parties that the Respondent  provided the Complainant with training and assistance in order to improve her performance. The Respondent reduced the Complainant’s target, but she failed to meet the reduced target.

On 13th December 2021, just over five months after her employment commenced, the Complainant was dismissed.

A former employee of the Respondent gave evidence that her sales figures were lower than the Complainant’s and that rather than being dismissed, her probation had been extended. The Complainant argued that her dismissal was due to her pregnancy and that had she not been pregnant, her probationary period would have been extended in the same manner. The Respondent’s position was that the Complainant’s employment was terminated during her probation as a result of her poor performance.

Preliminary Issue: A preliminary issue in this case was whether emails referred to by the Complainant were admissible or whether they attracted the protection of legal privilege. The question arose due to the Complainant including in her submissions, emails sent from the CEO of the Respondent to its solicitor and the solicitor’s response. The Respondent claimed that these emails were provided to the Complainant inadvertently and were protected, whilst the Complainant argued that privilege was lost once disclosed.

In confirming that legal advice privilege applied to these emails, the Adjudicator, Hugh Lonsdale, referred to the Circuit Court case, Record No. 2019/03674 in the matter of the Data Protection Acts 1988 & 2003 and in the matter of an appeal under section 26 of the Data Protection Acts 1988 & 2003 between Aimee Scott appellant -and- the Data Protection Commissioner (no. 1) respondent. In that case, the judge referred to the four elements for legal advice privilege set out by the Commissioner in its submissions as follows:

“The four elements that are required in order for a claim of legal advice privilege to succeed are summarised by the Commissioner in its submission as:

The Adjudicator was satisfied that each of these elements was present, and the emails were therefore inadmissible.

Decision: The Adjudicator found in favour of the Complainant on the grounds of gender and in doing so awarded her €32,500 (six months’ salary). This was despite the fact that she was still in her probationary period; there was evidence that her performance was lacking; and the Respondent had engaged with her extensively to support her. 

The Adjudicator referred to the Labour Court decision in Determination No. EDA2230 where the Court referred to the previous decision in Croc’s Hair and Beauty v Helen Ahern ADE/16/58:

“…this Court in the Croc’s case observed that the special protection afforded to women from the commencement of their pregnancy until the end of their maternity leave is to be regarded as a fundamental right and that where a pregnant woman is treated adversely because of her condition during this period, the employer bears the burden of proving, on cogent and credible evidence, that such treatment was in no sense related to her pregnancy.”

The Adjudicator accepted that the Complainant had not met her targets and that there were other concerns about her presentations. He noted that while the Complainant felt that the job was not what she had expected, she accepted that she had received sufficient training and did not appear to have provided any further explanation for her performance issues.

However, the Adjudicator agreed with the Complainant that her probationary period would have been extended if she had not been going on maternity leave. He found that she was dismissed because of her pregnancy and upheld her claim that her dismissal was discriminatory on the grounds of gender.

Takeaway for Employers: This case is a stark warning to employers that when dismissing a pregnant employee, they should ensure that they can demonstrate that the dismissal was in no way related to the employee’s pregnancy. In this case, the Respondent appears to have done everything in its power to assist the Complainant, including engaging with her, adjusting her targets, and providing training and support. Additionally, the Complainant was in her probationary period. In this case, much turned on the fact that the Respondent had extended another employee’s probationary period in similar circumstances, but terminated the Complainant’s employment without extending her probationary period. The Complainant was pregnant, the other employee was not. Employers should be careful to ensure consistency in approach, particularly where an employee has a protected characteristic.

This case may well be appealed to the Labour Court.

Link  – https://www.workplacerelations.ie/en/cases/2023/january/adj-00036775.html

Authors – Nicola MacCarthy, Jenny Wakely, Anne O’Connell

28th February 2023

Anne O’Connell Solicitors

19-22 Lower Baggot Street, Dublin 2


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