WRC Lifts the Cover on a Sham Redundancy and Instead Finds Unfair Dismissal

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WRC Lifts the Cover on a Sham Redundancy and Instead Finds Unfair Dismissal

January 15, 2019

In the recent Workplace Relations Commission (“WRC”) case of ADJ-00013503 A Bar Manager v A Hotel, a WRC Adjudication Officer (“AO”) found that a Bar Manager was unfairly dismissed due to pregnancy related reasons.

Background

The Complainant was employed as a Bar Manager following the refurbishment of the Respondent’s Hotel Bar from 3 April 2017 until she was dismissed on 5 September 2017. The Complainant submitted a complaint to the WRC under section 77 of the Employment Equality Acts alleging that she had been discriminated against and that her dismissal was due to pregnancy-related reasons.

The Complainant was absent from work due to pregnancy-related issues on a number of occasions between May and July 2017. During this time, the Complainant believed that she had suffered a miscarriage, but this was not confirmed by a medical practitioner. Upon her arrival back to work, the Complainant was invited to an investigation meeting as her absences were categorised as ‘unexplained absences’. At this meeting she informed the Respondent of her miscarriage and that she was suffering mental health issues as a result. Subsequently, on 27 July 2017 the Complainant was invited to a disciplinary meeting. The Respondent accepted that at this meeting the Respondent was aware of the Complainant’s miscarriage and nevertheless decided to give the Complainant her first written warning.

The Complainant was absent from work on approved compassionate leave at the end of August 2017. The Complainant later discovered that she had not suffered a miscarriage and that she was in fact pregnant. The Complainant submitted that when she returned to work on 5 September 2017 she was visibly pregnant. She informed the Respondent that she was pregnant and was due to give birth during the Christmas period. That same day the Complainant was asked by another manager “did she eat too much Supermac’s, or was she expecting”. The Complainant gave evidence that she was embarrassed by this comment and found it to be inappropriate. Before the end of her shift, the Complainant was asked to meet with the Respondent and a HR executive. At the meeting she was told that as a result of the refurbished bar failing to meet the forecasted profits, her role as Bar Manager was being made redundant. She was told she could finish her shift and she would be paid for one month’s notice.

The Respondent denied that the Complainant was dismissed due to her pregnancy. They submitted that they believed the Complainant had suffered a miscarriage and that the Complainant was never visibly pregnant. The Respondent argued that before the refurbishment of the bar the role of Bar Manager did not exist and the decision to revert this role back to the Hotel Manager on duty was made due to the lack of increase in revenue. The Respondent also denied that on 5 September 2017 the Complainant informed them that she was pregnant.

Decision of the WRC

The AO found that irrespective of whether the Respondent believed the Complainant suffered a miscarriage or was pregnant at the time, it is clear that the redundancy was related to pregnancy related issues. The AO was satisfied that the Complainant raised an inference of discrimination which the Respondent was unable to disprove. Additionally, the AO noted that the Complainant was not informed that her role was at risk, nor was she offered an alternative appointment within the Hotel Group. It was held that providing the Complainant with a list of roles currently being advertised within the Group was not sufficient and, as such, the Respondent failed to follow fair procedures. It was also noted that no other employees were made redundant at this time.

The AO found that no genuine redundancy occurred and that the Complainants dismissal was “tainted with discrimination”. The AO awarded the Complainant €14,000. It was noted that discrimination of this kind could merit a much larger award but the award in this case was reduced due to the short tenure of employment.

Lesson for Employers

This case serves as a reminder to employers that claims under the Employment Equality Acts can be brought from day one, and that the ‘gender’ ground covers any discrimination related to pregnancy including any pregnancy related issues and maternity leave. In addition, if an employer is considering whether to make a role redundant, fair procedures must always be followed.