WRC Awards €25,000 After Employee Dismissed Following Miscarriage
A recent Workplace Relations Commission (WRC) decision highlights the significant risks for employers when managing performance and probation where pregnancy or pregnancy related circumstances are involved. The case also reinforces that employees may be protected from pregnancy related dismissal even where they have less than 12 months' service.
The WRC found that an employee who was dismissed shortly after returning to work following a miscarriage had been unfairly dismissed, awarding her €25,000 in compensation.
The decision is a timely reminder that employers must be particularly careful when making decisions affecting employees following a miscarriage, pregnancy or other maternity related circumstances, and ensure that any performance concerns are properly documented and managed through a fair process.
Background to the case
The employee, Norah Joyce, was employed as a General Manager with Fadeside Limited, trading as The Residence Hotel and 1520 Bar, from November 2022.
Her employment contract provided for an initial six-month probationary period, which could be extended but could not exceed 11 months.
The employee maintained that she had successfully passed probation in May 2023. However, the employer subsequently argued that she remained on probation and that her employment was terminated due to concerns about her performance and ability to fulfil the requirements of the General Manager role.
During her employment, the employee had received management support, mentoring and external coaching. However, she maintained that she had not been formally advised that her performance was unsatisfactory or that her position was at risk.
In September 2023, the employee suffered a miscarriage and informed her employer of what had happened. She was absent from work for a short period before returning in October.
On 10 October 2023, just days after returning to work, the employee attended a meeting with her manager and the HR Manager. During this meeting, she was informed that her employment was being terminated due to performance concerns.
The employee subsequently brought a complaint to the WRC under the Unfair Dismissals Acts, arguing that her dismissal arose from matters connected with her pregnancy and miscarriage.
The employer denied this, maintaining that the decision was based entirely on performance concerns and that the employee had not completed 12 months' service.
WRC decision
The WRC found in favour of the employee and concluded that her dismissal was unfair and arose from matters connected with pregnancy.
There were several important factors considered by the Adjudication Officer.
1. An employee cannot remain on probation beyond the agreed contractual period
The WRC considered the employee's contract, which clearly stated that probation could not be extended beyond 11 months.
The employee had commenced employment in November 2022 and was dismissed in October 2023. The WRC accepted her evidence that she had already passed probation and found that, in any event, the employer could not rely on an extension beyond the maximum period provided for in her contract.
The employer was unable to provide documentation confirming that probation had been extended or that the employee had been formally advised of any ongoing concerns.
2. A miscarriage can be considered a matter connected with pregnancy
An important aspect of this decision was the WRC's consideration of the protections available under Section 6(2)(f) of the Unfair Dismissals Act 1977.
This provision identifies an employee's pregnancy, giving birth, breastfeeding and any matters connected with these circumstances as grounds where a dismissal may be deemed unfair.
The employer argued that the employee was no longer pregnant at the time of dismissal and therefore did not qualify for this protection.
However, the Adjudication Officer found that a miscarriage arises from pregnancy and can therefore be considered a matter connected with pregnancy for the purposes of the legislation.
The fact that the employee had less than 12 months' service did not prevent her from bringing a complaint where she could establish that the dismissal arose wholly or mainly from matters connected with pregnancy.
3. The employer could not adequately demonstrate that the dismissal was performance related
The employer maintained that the decision to dismiss was based on ongoing performance concerns and the employee's failure to demonstrate the necessary competencies for the General Manager role.
However, the WRC identified a number of shortcomings in the employer's evidence and documentation.
These included:
- No adequate records of the alleged performance concerns or discussions with the employee.
- No documented extension of the employee's probationary period.
- No formal Performance Improvement Plan, despite the employer maintaining that there were ongoing performance issues.
- No clear evidence that the employee had been formally advised that her position was at risk.
- Inconsistencies in the evidence provided by management and HR during the hearing.
The WRC also noted that the employee had been dismissed just five days after returning to work following her miscarriage.
The close timing of the dismissal, combined with the lack of supporting documentation and the absence of a convincing alternative explanation, led the Adjudication Officer to conclude that the dismissal was connected with matters relating to pregnancy.
4. The employer failed to follow a fair dismissal procedure
The WRC also highlighted significant procedural shortcomings in how the dismissal was handled.
The employee was not advised in advance that the meeting would result in the termination of her employment. She was not given an opportunity to respond to the concerns raised or to have someone present to support her during the meeting.
There was also no appeal process provided for in the termination letter.
The Adjudication Officer found that the employer had failed to provide the employee with basic fair procedures, including an opportunity to respond to the allegations and challenge the decision.
Having considered all the circumstances, the WRC concluded that the employee had established that her dismissal was wholly or mainly connected with pregnancy. The employer had not demonstrated exceptional circumstances justifying the dismissal.
The complaint was upheld and the employee was awarded €25,000 gross in compensation.
What does this mean for employers?
This decision highlights the importance of taking particular care when managing performance, probation and dismissal where pregnancy or pregnancy related circumstances are involved.
Even where an employer believes there are legitimate performance concerns, it is essential that these are supported by clear evidence and that the employee is treated fairly throughout the process.
Employers should consider the following:
- Manage probation properly: Ensure probationary periods are monitored, reviewed and documented. Any extensions must be in line with the employee's contract and communicated clearly.
- Address performance concerns early: Do not allow concerns to go undocumented or rely on informal conversations. Employees should be made aware of any shortcomings and given an appropriate opportunity to improve.
- Follow fair procedures: Ensure employees are advised of the concerns, given an opportunity to respond and provided with an appropriate appeal process where a dismissal decision is made.
- Take particular care following a miscarriage or pregnancy related absence: Any employment decision following these circumstances should be carefully considered to ensure it is not connected with pregnancy or maternity related matters.
- Keep accurate records: Maintain clear records of performance reviews, meetings, support provided, agreed actions and any decisions made throughout the employment relationship.
Key takeaway for employers
This WRC decision is a strong reminder that pregnancy related protections can extend beyond the period of pregnancy itself, including circumstances involving miscarriage.
Importantly, employees do not necessarily need 12 months' service to bring an unfair dismissal complaint where the dismissal is wholly or mainly connected with pregnancy.
Employers should never assume that an employee can be dismissed without risk simply because they have less than 12 months' service or are believed to be on probation.
Having clear probation procedures, addressing performance concerns as they arise and maintaining accurate records are essential. Where pregnancy or miscarriage is involved, employers should take particular care to ensure that any decisions are fair, objective and fully supported by evidence.
For advice and support on managing employee performance, probationary periods and difficult employee relations matters, contact MSS The HR People at info@mssthehrpeople.ie or call 01 887 0690.
