by Greta Siskauskaite, Solicitor, Employment law at Fieldfisher LLP (Ireland)
A Workplace Relations Commission (“WRC”) Adjudicator has held that an employee (“the Complainant”) was discriminated against on the ground of family status and has awarded her €33,540 (equivalent to 15 month’s pay).
In this case (ADJ-00043686), the Complainant claimed she suffered discriminated due to her family status when she was denied flexible working and when her employment was later terminated.
The employer (“the Respondent”) did not attend the hearing.
Facts
The Complainant commenced with the Respondent in February 2022 and her employment was terminated in November 2022, as a result of not successfully passing her probationary period.
The Complainant claimed that the refusal of her request to work outside the usual shift hours of 8.30am to 5.30pm was discriminatory. She claimed that as a single mother, she had onerous childcare demands and, arising from this, she required such flexibility so that she could meet her targets.
The Complainant’s employment was later terminated by the Respondent on the grounds of failing to meet her targets and also that she had not adhered to the required break and specific shift hours.
WRC Decision
The WRC Adjudicator was firstly critical that the Complainant’s probationary review, which terminated her employment, occurred nearly 3 months after the expiry of her 6-month probationary period. He also noted that no fair procedures were afforded to the Complainant during this process, which, he stated should apply, if an employer is acting outside the contractual probationary period and the allegations relate to performance and conduct.
The Adjudicator also noted that the Respondent was on notice of the Complainant’s need for some flexibility based on her family status as a single mother with a young child and yet, there was no evidence that the Respondent attempted to consider the request for flexibility.
He observed that: “the employer’s response was less than understanding”.
The Adjudicator also held that if such flexibility was provided, the Complainant would have met her performance targets.
He was also critical of the Respondent’s failure to comply with the Complainant’s contractual notice period.
The WRC held that, in totality, these facts gave rise to an inference of direct and indirect discrimination on the ground of family status and the burden of proof passed to the Respondent. The Respondent was not present to attempt to discharge that burden of proof and the Complainant’s claim succeeded.
Commentary
- The burden of proof in equality cases will rest on a complainant in the first instance. He/she will have to prove that, on the balance of probabilities, the primary facts, raise a presumption of unlawful discrimination. This is often a major battleground in such cases. However, if a complainant manages to do this, then the onus moves to the respondent to rebut that presumption;
- This case demonstrates that, even where an employee has less than 12 months service (and does not, on the face of it, have access to the unfair dismissals legislation) and is dismissed, he/she can still successfully bring other claims – including employment equality claims – against the organisation;
- The area of equality law is complex and not straightforward. Employers seeking to effect dismissals should seek professional legal advice in advance;
- Separately, a brief reminder to all employers in Ireland that the statutory right to request remote work and flexible work for caring purposes is underway. It is recommended that employers carefully consider such requests, as otherwise, potential discrimination risks (and other risks), can arise.
- The Respondent’s non-attendance at the hearing in this case naturally did not assist it in its defence.
About the author
Greta Siskauskaite specialises in the area of employment law and advises on both contentious and non-contentious employment matters at Fieldfisher LLP (Ireland).
Greta provides both commercial and best practice advice to employers and employees on all matters relating to employment law. This includes bringing/defending claims to the Workplace Relations Commission/Labour Court, advice on contracts and employee handbooks, internal company procedures, discrimination, redundancy and TUPE.
Greta’s experience includes assisting both private and public sector clients.
Greta regularly attends Employment Law Seminars to ensure that she remains up to date on relevant legislative developments.
Greta hold’s a Bachelor of Business and Law Degree from NUIM and a Diploma in Employment Law from the Law Society of Ireland.
