This is an appeal by Ms Rebecca Tracey, against Adjudication Officer’s Decision ADJ-00024891 given under the Employment Equality Acts 1998 to 2015.  The Adjudication Officer found that the Complainant was not discriminated against.

 The Complainant was employed by the Respondent as a Project Worker from the 19th of November 2018, until her employment ended on the 15th of May 2019. It is the Complainant’s submission that she notified her employer on the 7th of January 2019 that she was suffering from post-natal anxiety and that she was discriminated against on the grounds of disability when her contract was terminated, and the Respondent failed to provide reasonable accommodation. The Respondent disputed that the Complainant was discriminated against and submits that the Complainant’s employment came to an end as she did not successfully complete her probationary period.

The Complainant advised her line manager that she was struggling with the role and some days felt like she was working through a fog. On what she thought was a confidential basis, she informed the line manager that she had post-natal anxiety. At the meeting, the line manager indicated the availability of the employee assistance programme and advised if the Complainant was having a difficult day, she should take some time out and to let her line manager know if she could do anything further to help.

It was submitted on behalf of the Complainant that she was only advised on Tuesday the 15th of January 2019 that she was to attend a meeting the following day but was not told what the meeting was about. At that time, her son was ill, and she could not attend, and the meeting was pushed back to the 23rd of January 2019.

At the meeting, the Complainant was informed that her line manager had concerns about her performance. She was taken by surprise when her senior manager asked her if she thought she would be able to work if she was having issues with her mental health. The Complainant submitted that she responded and advised that she was managing her mental health issues. The Complainant submitted that asking her that question was an act of discrimination.

The Complainant further argued that the Respondent had failed to provide reasonable accommodation - however, the Complainant did acknowledge that she had not requested same and had in fact indicated to management that she was managing her health issues and was fit for work.

The representative for the Respondent submitted that the Complainant, as set out in her contract of employment, was required to complete a six-month probationary period. The Respondent argued that the Complainant’s employment was terminated due to unsatisfactory performance during the probationary period and was not in any way connected with any alleged disability.

The Respondent outlined that in the course of her employment, the Complainant attended several training courses provided by the Respondent but there were still issues with her performance. The Complainant met with her line manager to discuss her performance and her shortcomings on three occasions.

On the 17th of January 2019, an email was sent to the Complainant advising her of a meeting with a senior manager and the HR Manager.  At the meeting, the Complainant was informed that she was not performing at the required level and unless there was significant improvement in her performance, she would not pass her probation.

The next meeting with the Complainant took place on the 2nd of April 2019; again, issues were raised with the Complainant about her performance and the failure to meet the required standard. A subsequent and final meeting took place on the 15th of May 2019. At that meeting the Complainant was advised that her employment was being terminated as she had not met the required standard during her probationary period. The Respondent denied there was any link between the Complainant’s employment terminating and her alleged disability.

The Labour Court was satisfied that in this particular case, the Complainant had not discharged the initial probative burden, in that she has not proved primary facts from which an inference of discrimination could arise. On that basis the Complainant’s appeal was refused.

Guidance for Employers

Where facts are established by or on behalf of a Complainant from which discrimination may be inferred it shall be for the Respondent to prove the absence of discrimination. It is only if this initial burden is discharged that the burden of proving that there was no infringement of the principle of equal treatment passes to the Respondent. If the Complainant does not discharge the initial probative burden which she bears, her case cannot succeed.
https://www.workplacerelations.ie/en/cases/2022/july/eda2211.html