EDA2460

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00046504 (CA-00057358-001)

BACKGROUND:

The Worker appealed the decision of the WRC Adjudication Officer under Section 83 (1), Employment Equality Acts, 1998 to 2015 on 29 December 2023. A Labour Court hearing took place on 14 November 2024.

The following is the Determination of the Court.

DETERMINATION:

Background to the Appeal

This is an appeal by Ms Xhuljana Shehu (‘the Complainant’) from a decision of an Adjudication Officer (ADJ-00046504/CA-00057358-001, dated 22 November 2023) under the Employment Equality Act 1998 (‘the Act’). Notice of Appeal was received in the Court on 29 December 2023. The Court heard the appeal in Cork on 14 November 2024. The Complainant gave sworn evidence as did Ms Grace O’Mahony and Ms Kay Gaffney on behalf of C&M Recruitment Limited (‘the Respondent’).

Factual Matrix

At all material times, the Complainant was an agency worker and placed by the Respondent with a client company (‘Company A’) where she worked night shifts only by choice.

The Complainant referred her complaint under the Act to the Workplace Relations Commission on 26 June 2023. The period comprehended by the complaint is 27 December 2024 to 26 June 2023. However, as it is common case that the Respondent was informed of the Complainant’s pregnancy on 24 April 2023, only the period between that date and 26 June 2023 falls to be considered in relation to any complaint that the Complainant may have against the Respondent.

The Complainant’s Evidence

The Complainant told the Court that she became pregnant in 2023 and had informed her supervisor at Company A of this. The Complainant said she experienced a complication with her pregnancy on 26 March 2023 and had to attend the Emergency Department. She says that she informed the Respondent of her pregnancy at twelve weeks and at that time requested a reduction in her working hours so that she would work night shifts only twice per week. The Respondent undertook to take up her request with Company A but no reduction in the Complainant’s weekly working hours materialised at that time.

The Complainant’s evidence is that, in May 2023, she requested two unpaid days off from Company A but this was not sanctioned. She said that she contacted the Respondent about this but believes that she received no support from it. In or around this time, she said, Company A had introduced a flexible working arrangement whereby employees were permitted to avail of unpaid days of leave due to excess production.

When she was twenty-two weeks into her pregnancy, the Complainant says that she was asked by her supervisor when she intended to take maternity leave and when she replied that it was still too early to do so she was given the option to use up her accrued annual leave one day per week. She went on sick leave as she was suffering from stress and referred a complaint under the Act to the Workplace Relations Commission on 26 June 2023. The Complainant resigned her employment with the Respondent in February 2024.

Evidence of Ms Grace O’Mahony

The witness is co-owner and director of the Respondent company which has been operating since 2005 as a licensed employment agency and supplies approximately 300 agency workers to various client companies that have manufacturing facilities. The witness told the Court that the Complainant was subject to the human resources policies in place in Company A and had received induction training in relation to those policies.

The witness said she paid a site visit to Company A on 24 April 2023 where she met all agency staff on site to discuss issues of attendance, timekeeping and holidays etc. It was her evidence also that the Complainant informed her of her pregnancy during this site visit and also told her that she was now finding working night shifts difficult because of her pregnancy. The witness said that she advised the Complainant to speak to her supervisor on site but also to keep in touch with her (Ms O’Mahony). On her return to the Respondent’s office, the witness said that she informed her colleagues there of the Complainant’s pregnancy.

The witness’s evidence then turned to the Complainant’s attendance starting week beginning 29 May 2023. The witness – referring to the timesheets completed and returned by the Complainant – pointed out that the Complainant availed herself of flexible working time with effect from 1 June onwards and also availed herself of sick leave during weeks beginning 26 June 2023 and 3 July 2023 (i.e. after the within complaint had been initiated). The witness said she had been aware that the Complainant had taken some sick leave in May 2023 and had presented a fitness to work certificate on her return.

Counsel directed the witness to an email dated 16 June 2023 from the Complainant to her supervisor in Company A to which was attached a letter from the Complainant’s General Practitioner advising that the Complainant was finding night work difficult because of her pregnancy and recommending that her shifts be reduced from three to two per week. The witness said that this communication had been forwarded to the Respondent and that she expected there would be no difficulty in Company A facilitating the request as it had introduced flexible working arrangements for all staff in May 2023 and it was her understanding that any worker who had requested one or two days off per week had been facilitated.

The witness said that an email was issued by the Respondent on 6 June 2023 to all its employees on site with Company A to advise them on how to complete their weekly time sheets if they were availing themselves of flexible working. She said this email was followed by a text message on 9 June 2023. Her evidence was that she did not hear from the Complainant but noted that the Complainant’s timesheets had indicated that she was availing herself of flexible working and she, therefore, assumed that this had been approved by Company A.

The witness said that the Complainant’s supervisor emailed the Respondent’s office on 21 June 2023 to advise that the Complainant had requested a reduction in the number of nights she was working due to her pregnancy; the supervisor stated she had no issue with approving the request but enquired as to how the new arrangement should be reflected in the Complainant’s timesheets. The Respondent advised in reply that as sick leave cannot be pre-approved, the timesheets should reflect that the Complainant was availing herself of flexible working.

The witness then told the Court that the Complainant had emailed the Respondent on 23 June 2023 to say:

“I’m not really satisfied with the options I have been offered and I don’t want to use my annual leave hours just because I am not physically able to work full time because of my pregnancy. My doctor doesn’t think I need to go on sick leave yet they just recommend reduced working hours.

I would appreciate if you take [sic] again in consideration to review my request and my doctor’s recommendation for genuine reasons to accommodate me based on Employment Equality Act 1998-2015 legislation on grounds of gender and being pregnant.”

The witness told the Court that many of the agency workers the Respondent had placed on Company A’s site availed themselves of Company A’s flexible working arrangements during the period May to December 2023. She said the Respondent had one agency worker on site who didn’t’ do so but who moved from night shift to day work and subsequently changed department. Finally, the witness opined that the Complainant’s issue had been with her supervisor in Company A who appears to have approved the Complainant’s request for flexible working but subsequently reversed that decision.

Evidence of Ms Kay Gaffney

The witness told the Court that she had worked for the Respondent company since 2014. She said her first contact with the Complainant about the issues that gave rise to the within complaint occurred in June 2023 although the witness had been aware of the Complainant’s absence on sick leave in May 2023. The witness referred to the email dated 21 June 2023 from the Complainant’s supervisor in Company A, discussed previously by Ms O’Mahony in her evidence. The witness confirmed that the response given to the supervisor was that the Complainant should be recorded as availing herself of flexible working (and not sick leave) in respect of planned days off. The witness said she spoke by telephone with the supervisor’s line manager to confirm this arrangement.

The witness then told the Court that she received a telephone call from the Complainant on 23 June 2023 to advise that her flexible working arrangements had been cancelled by Company A. The witness said she did not understand why the Complainant wished to take sick leave when she could be availing herself of flexible working and attempted to clarify this with the Complainant. She then referred to her email exchange with the Complainant later that day, which has already been discussed as part of Ms O’Mahony’s evidence.

Respondent’s Closing Submission

Counsel for the Respondent submitted that there were procedures in place to facilitate the Complainant raising a complaint about any aspect of her working arrangements with the Respondent but that she had not done so. Counsel also submitted that the clear evidence given by its witnesses was that the Respondent had at all times supported the Complainant’s request to avail of flexible working arrangements with Company A and that, therefore, any issues that arose in respect of that request were matters for which Company A and not the Respondent were liable.

Discussion and Decision

It appears to the Court that the Complainant has not established any facts from which an inference of discrimination on the part of the Respondent can be made. It is not disputed that the Complainant was subject to Company A’s human resources policies at all material times and that includes Company A’s flexible working policy as applied in the period May to December 2023. The unequivocal and uncontested evidence of the Respondent’s witnesses is that the Respondent not only supported the Complainant’s request to avail of the flexible working arrangements but understood that she had been approved to do so and was doing so. The witnesses acknowledged that some confusion and mismanagement had occurred in this regard at Company A’s end and when this came to light, they intervened with management at Company A on the Complainant’s behalf but shortly thereafter the Complainant initiated the within complaint.

For the foregoing reasons the Court finds that the Complainant’s appeal fails. Her complaint that she had been discriminated on grounds of pregnancy by the Respondent is not well-founded. The decision of the Adjudication Officer is upheld.

The Court so determines.

	Signed on behalf of the Labour Court
	Alan Haugh
AR	______________________
2nd December 2024	Deputy Chairman

NOTE

Enquiries concerning this Determination should be addressed to Aidan Ralph, Court Secretary.