The complainant was employed on 14 May 2010 as a shop assistant and she asserted that her hours were cut after she informed her employer in October 2010 that she was pregnant, just before going on leave.  She went on sick leave in December 2010 and was dismissed.

The respondent had ceased trading by the time the hearing took place but the Equality Officer had its written submission.  That submission asserted that the complainant had been disruptive in the workplace, that other colleagues complained about her and that she was dismissed as she was still on probation as the respondent did not believe she could be rehabilitated to work in her role.  She was, it was asserted, openly hostile, aggressive, and insubordinate.  The respondent also asserted she had failed to attend mandatory training while the complainant asserted she had a ante-natal appointment on the relevant date.  It was also asserted that she went on sick leave on 12 December 2010 but attended the doctor on 20 December 2010 and this was accepted by the Equality Officer.  The Equality Officer was also of the view that the complainant could have rescheduled her appointment in order to attend the training.

The Equality Office was satisfied that the complainant’s hours were reduced commencing in November 2010.  Even taking account of the mitigating factors the Equality Officer upheld the complaint in respect of less favourable treatment and dismissal on the gender ground and awarded the complainant €12,000 which amounts to about 9 months salary.

Another approach might have been to consider whether the complainant’s failure to attend the mandatory training and failure to attend a doctor to secure a medical certificate for the first week were supportive of the respondent’s position and could be seen as displaying a disregard to the requirements of her employment.  Of course, all of the information available to the Equality Officer may not be included in the Decision.  It should also be remembered that although the respondent did not attend the hearing, a solicitor did on its behalf and therefore one would expect that the complainant was subject to cross examination.  The Equality Officer, however, found that the complainant had demonstrated prima facie evidence of discriminatory dismissal on the gender ground.

Why is this case of interest

• This is a useful reminder that a dismissal during the protected period will always require a robust defence with cogent evidence.

Rea.d the Full Case Decision Here:

 http://www.workplacerelations.ie/en/Cases/2013/November/DEC-E2013-154.html