Discrimination and Dismissal during the Probationary Period

Introduction

The case of Anuaj Patwardhan v Black Shamrock Ltd (ADJ-00039205) serves as a reminder of the importance of maintaining detailed records during a probationary period, of employees whose performance may not be to standard, especially when dismissal may be contemplated.

In this case, Ms. Patwardhan (the Complainant) alleged that her employer, Black Shamrock Ltd (the Respondent), engaged in discriminatory treatment against her. The Complainant, a HR and Operations Manager, was dismissed during her probationary period, but claimed she was dismissed on the basis of religion and racial origin, which is in contravention of the Employment Equality Act, 1998.

Position of Complainant

Ms. Patwardhan claimed to be a highly qualified human resources manager who was terminated on the grounds of her religious convictions, ethnic heritage, and Indian descent. She claimed that throughout her employment with the organisation, she was not made aware of any negative performance concerns. As noted by her representative, the letter of dismissal made no mention of deficiencies in performance. A dispute emerged during the adjudication proceeding regarding a purported mid-probation meeting in which deficiencies in performance were detected. Performance, according to the Complainant, was never an issue, rather, it was "culture," which could only refer to her own "culture." During cross-examination, the Complainant admitted that she had disclosed her Indian heritage to the initial job interviewer, but that her religious beliefs had never been brought up.

Position of Respondent

The Respondent claimed that significant deficiencies were discovered in the capacity of the Complainant to perform fundamental responsibilities, such as payroll and recruitment processes. Two colleagues apparently tendered their resignations as a consequence of the deficiencies in her performance, that were identified during a midterm probation review. The HR office allegedly developed a noxious environment as a result of her actions.

Determination of the Adjudication Officer

The employer bears the burden of proof in an employment equality case to demonstrate the absence of discrimination once the employee has established a reasonable inference of potential discrimination. This is supported by the Labour Court's ruling in Southern Health Board v Mitchell, [2001] -ELR 201. The central issues in this case are whether the Complainant was subject to discrimination under Sections 2 and 6 of the Act, whether she was treated less favourably than another individual not affected by the discriminatory ground, and whether she was discriminated against.

The Complainant, who was of Indian descent, alluded to her religious beliefs without explicitly expressing them. The evidence put forth demonstrated that she fulfilled one of the criteria for discrimination, however, its inadmissibility stems from the absence of specificity regarding the religious grounds. Allegedly, her employment was terminated because her Indian heritage rendered her "incompatible with the employer's culture."

Initially, the Complainant bore the burden of proof, however, the religious premises put forth were not supported by any evidence or logical deductions. The primary topics of discussion were those addressed during the probationary review meeting, as well as additional accusations made by coworkers concerning the "toxic" environment within the workplace. Despite the fact that the oral testimony and detailed records of the meeting disclosed considerable discontent between the parties, there was no conclusive evidence that the racial origin of the complainant was a significant factor:

“This was a Performance Probation Termination and from all the Oral and Written evidence it was conducted reasonably fairly.

The Adjudicator could not see any evidence of a Religious or an Ethnic origin basis in the decision. There is not enough or indeed any obvious evidence of a Discriminatory Dismissal.”

Key Takeaways



For employers, it is important that any decision to terminate employment, even during the probation period, be made for objective, fair and reasonable reasons, and is documented and explained, as far as possible.

For employees, if bringing a claim of discrimination, it is critical that they have some evidence beyond mere speculation, to support such a charge.