Employee dismissed on probation succeeds in discriminatory dismissal case

His employer had contended the dismissal was due to poor performance, following a probationary process which included probationary meetings taking place at three, four and five months into his employment.

According to an adjudication decision from the WRC, the anonymous complainant said a younger sales representative hired by the electrical company at the same time as him had been provided with mature contracts worth €400,000, while he was not given any established contracts – making higher sales figures more likely for his younger colleague.

The complainant said the only material difference between him and his colleague was an age difference of approximately 30 years.

He said he had been dismissed after a probation meeting, with his employer citing disappointing sales figures and not generating new accounts as the reason for his dismissal. However, the complainant said his job title did not have conditions attached that detailed sales targets he should have met, nor did his contract of employment.

He said that although he had less than 12 months’ continuous service, he should be covered by employment equality legislation as he was treated less favourably on the grounds of age. The complainant also argued that, in a hypothetical situation where the mature contracts were split on an equal basis “a fair and equal competition based on sales alone would have existed”.

As a result, he said the decision to allocate existing sales contacts to one new employee but not to another, where the only material difference between the two was age, meant his dismissal could not be “objectively and reasonably justified”.

The company denied the allegations, saying the dismissal followed a fair probationary process. The company also contended that that reason the established clients were given to the younger colleague was because he had a previous relationship with those clients and was not based on age.

However, the adjudication officer said the fact the younger employee had received a starting position of €400,000 in mature contracts was “significant”, and found that the complainant had established a prima facie case of age discrimination.

The adjudication officer said it was clear “that of two employees who commenced employment in the same role at the same time one was given a clear advantage of having mature contracts assigned and the other was not. What differentiated the two employees was their age.”

She went on to say that it was clear from the evidence presented by the electrical company that there was an assumption that the older, more experienced employee would be able to self-generate all his own business and this turned out not to be the case.

The adjudication officer held that the complainant had been subject to discriminatory dismissal on the grounds of age and cited a Labour Court decision which said even if an employer acted “without discriminatory intent toward the complainant” the court was unprepared to accept that “motivation is not a decisive factor and the accepted bona fides of the respondent is not an allowable defence”.

The complainant was awarded €17,500 in compensation for the age discrimination he suffered.

Employment law expert Jason McMenamin of Pinsent Masons, the law firm behind Out-Law, said: “Employers should be aware that while the general position is that an employee cannot bring an unfair dismissal claim unless they have 12 months’ continuous service, there is no service threshold to bring a discriminatory dismissal claim or an industrial relations claim.

“A discriminatory dismissal claim can arise where an employee claims they have been dismissed because of their gender, race, sexual orientation, age, disability or any of the other discrimination grounds,” McMenamin said.

Employment law expert Ciara Ruane of Pinsent Masons said: “Interestingly the adjudication officer cited another court decision which stated ‘discrimination is usually covert and often rooted in the subconscious of the discriminator’.

“In our experience, employers must consider both the legal and the cultural in every aspect of recruitment to seek to prevent these claims arising. As well as ensuring that documents are legally compliant employers should audit its processes and language used to ensure it is inclusive,” Ruane said.