In the case of Ivana Cepo v Sherborough Enterprises Ltd ADJ-00035362 before the Workplace Relations Commission (“WRC”), the Complainant contended that she suffered discrimination and harassment on the basis of family and gender grounds and that she was dismissed on that basis.
It was the Respondent’s argument that she had not passed her probation, which had been paused on two occasions due to Covid-19 layoff and her maternity leave.
Facts: The Complainant was employed as a property administrator with the Respondent from 30th September 2019 until her termination on 1st July 2021. Her employment was subject to a probationary period. There was a considerable conflict of evidence in this case.
The Complainant claimed that she successfully passed her probationary period. However, when her manager left in August 2020 and the company owner became her new line manager, she was told that she had not passed her probation and that it had in fact been extended.
She also claimed that she was offered €4,000 to leave the Respondent company in September 2020. She stated that on consulting with the head of HR she was advised to accept the offer, as they could just wait until she returned from maternity leave and dismiss her within two weeks.
The Complainant further claimed that she was bullied on a daily basis, set unrealistic tasks, and subjected to constant criticism of her work. She was advised by her GP to go on early maternity leave in October 2020, due to concerns for her stress levels and high blood pressure. She was informed that her probationary period would continue following her return from maternity leave and that if her performance was not satisfactory, she would receive two weeks’ notice.
The Complainant claimed that she felt isolated after she returned from maternity leave and that she continued to be set unrealistic tasks and criticised unfairly. She was dismissed and paid two weeks’ pay in lieu of notice.
According to the Respondent, the Complainant’s probationary review was delayed because she and her colleagues were placed on lay-off for a 13-week period in March 2020 because of the Covid-19 restrictions in place at that time. The Respondent’s position was that the Complainant’s first probation review took place on 24th June 2020 and a copy of notes from the review was provided which stated that the probation review had not been passed and that the Complainant’s probation was extended by three months. The Complainant had signed the notes and initialled each page. The Complainant had not informed the Respondent that she was pregnant at this time.
The Respondent gave evidence that a second review took place on 20th August 2020 where the Complainant was given a rating of GT (“getting there”) in five of the seven headings and PW (“performing well”) in the remaining two. This was not sufficient for the Complainant to pass probation, but instead of terminating her employment at this time, a decision was made to extend her probationary period to afford her a further opportunity to improve. The Respondent was aware at this time that the Complainant was pregnant.
According to the Respondent, a third probationary review meeting was held on 29th September 2020 during which the Complainant was informedthat her probationary period would be extended. She was also informed that if her performance had not improved satisfactorily before commencement of her maternity leave, her probationary period would be paused until her return to work.
Evidence was given on behalf of the Respondent that her performance did not improve following her return from maternity leave and her employment was terminated for that reason.
The Respondent cited the Supreme Court decision in Maha Lingam v HSE [2005] IESC 89 as authority for the position that the requirement for fair procedures is less onerous where an employee’s employment is being terminated during or at the end of a probationary period. Despite this, the Respondent argued that the Complainant was afforded ample time and opportunities to improve her performance, but to no avail. The Respondent also pointed out that the Complainant was not pregnant when she failed her probation.
Decision: The Adjudicator accepted the Respondent’s evidence in relation to the Complainant’s probationary review conducted in June 2020 and the extensions made to her probationary period.
The Adjudicator referred to the denial by the Respondent at the WRC hearing that it made an offer of €4,000 to the Complainant. He referred to email correspondence from the Complainant to the Respondent on 30th September 2020 in which she made reference to the offer, and noted that the Respondent did not deny this in its written response to the Complainant at the time.
The Adjudicator further commented that there were “many things said in relation to this complaint and there are many contradictions by both parties in relation to the complaint.”
He concluded that “Purely based on the balance of probability I find that the complaint is well founded…” He ordered the Respondent to pay €12,500 to the Complainant in compensation for the effects of the discrimination.
Takeaway for Employers: The decision in this case unfortunately does not set out the basis/bases on which the Adjudicator found in favour of the Complainant. There is no reference to the applicable burden of proof, and it is not clear how the Adjudicator reached his decision.
While it is not altogether clear from the decision, it appears that the Respondent’s failure to deny having made an offer to the Complainant of €4,000 to leave her employment until the hearing of the matter may have swayed his decision.
While it is likely that the decision will be appealed to the Labour Court, it demonstrates that employers cannot be too careful in ensuring that there is an accurate paper trail in relation to a probationary review (or similar) process involving an employee with a “protected characteristic” under the Employment Equality Acts. An employer must be in a position to demonstrate that any decisions relating to an employee’s employment is not related to that characteristic.
Authors – Ethna Dillon, Jenny Wakely and Anne O’Connell
28th February 2023