WRC Finds Pregnancy Discrimination Following Probationary Review
A recent decision of the Workplace Relations Commission (WRC) highlights the importance of following fair and well documented procedures when managing employees during probation, particularly where an employee has disclosed a pregnancy or is absent due to pregnancy related illness.
The case involved an office worker who was dismissed during her probationary period while she was absent on certified sick leave. The employee subsequently brought a claim of discrimination on the gender ground, arguing that her pregnancy was the reason for the termination of her employment.
The WRC Adjudication Officer found in the employee's favour and awarded €5,000 in compensation.
The decision provides a useful reminder for employers that being within a probationary period does not remove the obligation to comply with employment equality legislation.
Background to the case
The employee commenced employment as an Office Controller in October 2024.
In December, following a visit to her GP, she went on certified sick leave. Shortly afterwards, she informed her employer that she was pregnant.
The employer subsequently advised her that a three month review of her employment was due to take place in January. As the employee remained absent from work, the review proceeded without her.
Following the review, the employer informed her by email that her employment would not continue on a permanent basis.
The employee argued that there had been no concerns about her performance before she disclosed her pregnancy and that the timing of the review and termination gave rise to an inference that her pregnancy was a factor in the decision.
The employer denied that the termination was connected in any way with the employee's pregnancy. Its position was that the employee had been subject to the same probationary review process as other employees and that the decision was based on performance concerns.
What did the WRC find?
The Adjudication Officer found that the employee had established a prima facie case of discrimination on the pregnancy ground.
A significant issue in the case was the evidence surrounding the employee's contract and probationary period.
The employer relied on a three month probationary provision in the contract. However, the contract produced in evidence had not been signed by either party. The Adjudication Officer therefore gave limited weight to the document.
There was also a dispute about whether the employee had been properly informed about the probationary review and whether the employer was aware of her pregnancy.
The WRC was critical of the employer's approach, particularly the decision to conduct the review and terminate the employee's employment while she was absent, without giving her a formal opportunity to respond to concerns about her performance.
The Adjudication Officer also commented that terminating an employee's employment by email was not best practice.
Ultimately, the WRC concluded that the employer's explanation was not sufficiently credible and that the circumstances surrounding the dismissal supported the employee's claim of pregnancy discrimination.
Compensation of €5,000 was awarded.
Why is this decision important for employers?
This case is a useful reminder that probationary employees are not outside the protection of the Employment Equality Acts.
Employers can assess an employee's suitability during probation and, where appropriate, decide not to continue their employment. However, the reason for the decision must not be connected to a protected ground, including pregnancy.
For employees on probation, EU law protecting pregnant workers (the Pregnant Workers Directive 92/85/EEC), also remains an important protection. It prohibits the dismissal of a pregnant worker unless the employer can provide duly substantiated grounds for the dismissal in writing. A probationary period does not displace this protection. Where no performance concerns, issues or warnings have previously been raised, and the dismissal is instead influenced by the employee’s pregnancy or the perceived inconvenience associated with it, the dismissal may amount to unlawful pregnancy discrimination.
The timing of events can also be significant.
Where an employee discloses a pregnancy and is subsequently subjected to a significant employment decision, such as a performance review, disciplinary process or termination, an employer should be able to clearly demonstrate the legitimate business reasons for that decision.
This does not mean that an employer cannot proceed with a genuine performance review following a pregnancy announcement. Rather, it is important that the employer can demonstrate that the process is genuine, fair and supported by evidence.
Key lessons for employers
1. Probation does not remove equality obligations
Probationary employees are still protected by the Employment Equality Acts.
An employer should therefore avoid treating the end of a probationary period as an automatic opportunity to terminate employment without considering whether the decision could be connected to a protected ground.
Where performance is the issue, the employer should be able to demonstrate what the concerns were and how they were identified.
2. Document performance concerns throughout probation
One of the practical lessons from this case is the importance of addressing performance issues as they arise.
If an employee's performance is genuinely below the required standard, employers should not wait until the end of probation to raise concerns for the first time.
Regular formal interim reviews, before the final probation review, and documented feedback provide an opportunity for the employee to understand what is expected and, where appropriate, improve their performance.
A paper trail should not be created simply because an employee has disclosed a pregnancy. Instead, employers should ensure that their normal performance management processes are being followed consistently for all employees.
3. Be particularly careful where timing could create an inference of discrimination
There may be legitimate reasons for an employment decision shortly after an employee discloses a pregnancy.
However, the timing can become relevant if the employer cannot demonstrate that the decision was already being considered or was based on independently documented concerns.
Employers should therefore ensure that decisions are supported by contemporaneous evidence rather than retrospective explanations.
4. Make sure employees receive their employment documentation
The case also highlights the importance of providing employees with appropriate written terms of employment and ensuring it is signed by both parties or at the very least signed on behalf of the Company.
Employers should ensure that contracts and written statements of terms are issued within the required statutory timeframe and that important provisions, such as probationary arrangements, are clearly communicated.
If an employer intends to rely on a particular contractual provision, it should be able to demonstrate that the employee was properly provided with and informed of that provision.
5. Consider how absence affects a probationary review
An employee being absent on certified sick leave does not necessarily prevent an employer from managing probation.
However, employers should consider whether it is appropriate or possible to fairly assess an employee's performance when they have been absent for a significant part of the relevant period.
Depending on the circumstances, it may be more appropriate to postpone a review until the employee has had a reasonable opportunity to demonstrate their ability to perform the role. You may wish to consider adding a clause into your probation policy to allow for an extension to take into account periods of absence.
Any decision should be considered carefully and should not be influenced by pregnancy or pregnancy related illness.
6. Give employees an opportunity to respond
Where an employer has concerns about performance, employees should generally be made aware of those concerns and given an appropriate opportunity to respond.
This is particularly important where the concerns are ultimately going to form the basis for a decision not to continue employment.
A probationary process should not simply become a retrospective justification for a decision that has already been made.
What should employers do now?
Employers should review their current probationary and performance management processes to ensure that they are consistent, documented and capable of demonstrating how employment decisions are reached.
In particular, employers should consider:
- Is there a probationary process in place and are managers aware of it?
- Does the probationary process include interim reviews before the probation period ends?
- Are probationary periods and review arrangements clearly communicated to employees?
- Are performance concerns documented when they arise?
- Are probationary decisions based on objective and documented considerations?
- Are managers aware of the additional sensitivity required where pregnancy is disclosed?
- Are employment decisions properly separated from an employee's pregnancy, maternity leave or pregnancy related absence?
- Are employees given an appropriate opportunity to respond to performance concerns?
- Is the proposed method of communicating a termination appropriate and professional?
- Are contracts and written terms of employment being issued correctly?
- Are contract signed?
Managers should also be reminded that a pregnancy announcement should not result in a change in how an employee is treated, assessed or managed.
A Final Reminder For Employers
This decision does not mean that an employer cannot terminate the employment of a pregnant employee during probation where there are genuine and properly evidenced reasons for doing so.
However, it demonstrates the risks that can arise where there is a close connection between the disclosure of pregnancy and a subsequent employment decision, particularly where the employer's documentation and evidence do not clearly support its position.
Good HR practice is therefore particularly important in these circumstances.
If an employee has disclosed a pregnancy and you are considering taking action in relation to their performance, probation or employment, employers should seek appropriate HR and employment law advice before proceeding.
How MSS The HR People Can Help
MSS The HR People can support employers with advice and training on probationary reviews, performance management, pregnancy and maternity related HR matters, and ensuring that workplace procedures are applied fairly and consistently.
For advice and support, contact MSS The HR People at info@mssthehrpeople.ie or call 01 887 0690.
