GARDINER
V
MERCER HUMAN RESOURCE CONSULTING
(REPRESENTED BY MS. KIMBER BL
INSTRUCTED BY MATHESON, ORMSBY, PRENTICE - SOLICITORS)
1. DISPUTE
This dispute involves a claim by Ms. Patricia Gardiner that she was discriminated against by Mercer Human Resource Consulting on grounds of gender and family status, in terms of section 6(2) of the Employment Equality Act, 1998 and contrary to section 8 of that Act, in that when she resumed work following her absence on maternity leave in December, 2003 it failed to return her to the post she held before she had commenced that leave. The respondent rejects the complainant's assertions and contends, as a preliminary point, that the matter at issue is covered by the Maternity Protection Acts, 1994 and 2004, that it is therefore outside the scope of the Employment Equality Act, 1998 and the Equality Tribunal has no jurisdiction to consider the claim.
2. BACKGROUND
2.1 The complainant was employed as Facilities Manager by the respondent. She was absent from her employment on maternity leave from 30 June, 2003 until 18 December, 2003. She contends that when she resumed work in December, 2003 she did not return to the post she held previously. The complainant asserts that the respondent's actions in this regard constitute less favourable treatment of her contrary to the Employment Equality Act, 1998. The respondent rejects the complainant's contention and states that she returned to the same post (Facilities Manager) on her return from maternity leave which she held before commencing that leave, under the same terms and conditions of employment and with the same salary. Notwithstanding this assertion, the respondent submits, as a preliminary point, that the matter at issue is covered by the Maternity Protection Acts, 1994 and 2004, that it is therefore outside the scope of the Employment Equality Act, 1998 and the Equality Tribunal has no jurisdiction to consider the claim.
2.2 The complainant referred a complaint under the Employment Equality Act, 1998 to the Equality Tribunal on 22 March, 2004. In accordance with her powers under the Act the Director delegated the complaint to Mr. Vivian Jackson, Equality Officer, for investigation and decision and for the exercise of other relevant functions under Part VII of the Act. Written submissions were received from both parties and a Hearing of the complaint occurred on 28 November, 2005.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 The complainant commenced employment with the respondent as Facilities Manager in January, 2001. This role entailed having responsibility for the wide range of services and procedures associated with running the respondent's office accommodation including - archiving of records, stationery/printing, security, building maintenance, equipment and the refurbishment of offices in Cork as well as the development of the Facilities Department within the organisation. On her appointment she reported to Mr. Brophy, Deputy Chief Executive Officer and was, she submits, expected to work on her own initiative. On her return from maternity leave she found she was reporting to Mr. Brennan, Chief Financial Officer. She states that during this period she was not formally reviewed under the respondent's performance appraisal system and she was never informed that her performance was not acceptable. The complainant commenced maternity leave on 28 June, 2003. She states that prior to this she had been requested by Mr. Brophy to recruit a replacement for the duration of her maternity leave and following a selection process which she conducted she recommended Ms. O as a suitable replacement to Mr. Brophy and he agreed.
3.2 The complainant states that on her return from maternity leave on 18 December, 2003 she met with Mr. Brennan. She adds that he informed her of the changes in the reporting structure, that Ms. O's contract had been extended and that she (Ms. O) would assume responsibility for some areas of work - refurbishment of the Cork Office and "special projects", although these projects were not specified. The complainant states that this created confusion as to what her role now was and she sought clarification of same. A numbers of meetings between the complainant, Mr. Brennan and Ms. Sheehan, Head of Human Resources, followed and during the course of these discussions the respondent maintained her role had not changed from that which she held prior to maternity leave. The complainant states that Mr. Brennan furnished her with a role profile form for her post on 9 February, 2004 and this document set out tasks which she had responsibility for - by default it clarified to some degree the tasks which Ms. O was to undertake. The complainant states that despite this degree of confirmation she found it increasingly difficult to perform her job as she was still unsure whether or not Ms. O was reporting direct to Mr. Brennan or if she (the complainant) had some form of supervisory role over her. In addition, the complainant states that as a result of the behaviour of the respondent she felt completely marginalised at work.
3.3 The complainant contends that this environment resulted in strained relations between her and Ms. O. She further contends that Mr. Brennan blamed her for this strained working relationship in that he made a number of comments to her about the level and extent of her interaction with Ms. O. The complainant contends that Mr. Brennan's belief she was responsible for the difficult working relationship is illustrated by his comment at a meeting of 1 March, 2004 where he states that Ms. O was resigning because she felt the complainant "had treated her badly". The complainant alleges that subsequently Mr. Brennan refused to grant her annual leave at the end of May, 2004 and contends that this behaviour constitutes discrimination of her. The complainant further alleges that what she describes as the subsequent "micromanagement" of her work by Mr. Brennan further diminished her standing within the organisation from that which she had held prior to her maternity leave and this behaviour constitutes less favourable treatment of her contrary to the Act.
4. SUMMARY OF RESPONDENT'S CASE
4.1 In the first instance the respondent argues that the Equality Officer has no jurisdiction to investigate the claim as the matter at issue is covered by the Maternity Protection Acts, 1994 and 2004. It notes that the remedies under the maternity protection legislation are substantially lower than those under the Employment Equality Act, 1998 and submits that the complainant is not entitled to forum shop and in the process seek to circumvent the clear wish of the Oireachtas in setting a limit to the amount of redress obtainable as a result of any alleged breach of the maternity protection legislation, by seeking to have her complaint litigated in another forum where the quantum of redress is greater.
4.2 The respondent contends that it did not discriminate against the complainant and states that she returned to exactly the same job after maternity leave (Facilities Manager) to that which she occupied before commencing that leave, under the same terms and conditions of employment and the same salary. The respondent states that Ms. O was originally recruited to provide cover for the complainant during maternity leave and her contract was due to expire on 9 January, 2004. However, it was decided, by Mr. Brophy, Ms. Sheehan and Mr. Brennan to extend her contract for a further six months to facilitate a more effective handover to the complainant on her return and to provide additional resources to the Facilities Department. The respondent states that following the complainant's return from maternity leave it met with her to reassure her there was no change in her role within the organisation and made all reasonable efforts to allay the complainant's concerns in this regard. It adds that the complainant was asked on a number of occasions to discuss and agree with Mr. Brennan - her Line Manager - what projects might be assigned to Ms. O to utilise the additional resource and refused to do so. Consequently, Mr. Brennan devoted a significant amount of his time to resolving the issue and had hoped that the matter had been brought to a conclusion when he met with the complainant on 9 February, 2004 to sign off on her role profile form for the year.
4.3 The respondent contends that there was no confusion in the organisation as to the role and status of the complainant on her return from maternity leave. It further contends that she failed to communicate with Ms. O on work related matters, despite repeated requests from Mr. Brennan to do so. It adds that the complainant's reason for not interacting with Ms. O was because she (the complainant) was "expected to negotiate with a colleague who didn't report to me about an area for which I had responsibility". The respondent states that there are many instances in the organisation where employees - both permanent and fixed-term - are assigned projects within an area under the responsibility of a particular manager but they report directly to another manager. It accepts that Ms. O was to report directly to Mr. Brennan on a number of projects within the complainant's area and submits that this arrangement falls into the foregoing structure. It further submits that the complainant decided, of her own volition, not to communicate or work with Ms. O and consequently, the difficulties which existed in the Department were entirely of her own making.
4.4 The respondent rejects the complainant's assertion that Mr. Brennan commenced a "micromanagement" approach to her work. It argues that if he took a more hands on approach to the complainant's work than his predecessor it does not constitute discrimination of her contrary to the Act. It further states that the minutes of the meeting of 1 March, 2004, which were prepared by Mr. Brennan, accurately reflect his understanding of Ms. O's situation at that time, as he had spoken with her shortly beforehand. The accuracy of his understanding was confirmed by Ms. O in the course of the Hearing. Circulation of the minutes were restricted to the complainant and Mr. Brennan. In the circumstances the respondent submits that this does not constitute less favourable treatment of the complainant contrary to the Act.
4.5 The respondent states that at all times it facilitated the complainant's holiday requests and that she was treated no differently to any other member of staff in that regard. It states that company policy requires reasonable notice of holiday requirements and that they must be agreed in advance with the appropriate Line Manager. The respondent states that the complainant applied for annual leave on 20 May, 2004 amounting to a total of thirteen days out of the following twenty-two working days - the first two days of which were within three working days of the application. The respondent submits that this is not reasonable notice. It states that there were a number of projects ongoing at the time, that there was already a shortage of staff and that Mr. Brennan met with the complainant swiftly to deal with the request but was unable to approve the leave requested for the next week. It adds that a substantial amount of holidays were approved for the complainant over the following couple of weeks. It submits that this supports its contention that approach adopted by the respondent was in accordance with the company's standard practice and does constitute discrimination of the complainant.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issues for consideration by me is (i) whether or not I have jurisdiction to investigate the complainant's case and (ii) whether or not the respondent discriminated against the complainant on grounds of gender and family status, in terms of section 6(2) of the Employment Equality Act, 1998 and contrary to section 8 of that Act, in that when she resumed work following her absence on maternity leave in December, 2003, it failed to return her to the post she held before she had commenced that leave. In reaching my decision I have taken into account all of the evidence, written and oral, submitted by the parties.
5.2 The Maternity Protection Acts 1994 and 2004 provide, inter alia, an entitlement for employees returning to work following a period of "protective leave" (which includes maternity leave and additional maternity leave) to return to the same or suitable alternative employment. The Acts also provide that any dispute in respect of certain entitlements (including an entitlement to return to work) under those Acts should be referred, in the first instance to a rights commissioner with a right of appeal to the Employment Appeals Tribunal. There is no provision in the Acts which prevents an employee from referring a complaint of discriminatory treatment in respect of pregnancy or maternity related issues to the Equality Tribunal or which requires an employee to choose that avenue of redress over referring a complaint to the rights commissioner, if the issues in question might also be appropriate to the maternity protection legislation. The Employment Equality Acts, 1998-2004 provide, inter alia, that claims of discriminatory treatment on any of the nine prohibited grounds should with limited exceptions, be referred, in the first instance, to the Equality Tribunal. Section 101 of those Acts sets out specific circumstances restricting a complainant from following dual avenues of redress under, inter alia, those Acts and unfair dismissals legislation. It does not place any restriction on claims which may also have a course of redress under the maternity protection legislation, in particular requiring a complainant to choose one avenue of redress over the other. I am of the view that had the Oireachtas intended to curtail an employee's rights in that respect it could and would have specifically legislated for same. As no specific restriction exists under either of the Acts, I am satisfied that I have jurisdiction to investigate this complaint. The fact that the complainant may or may not have referred a complaint under the maternity protection legislation does not alter this decision.
5.3 I shall now deal with the substantive claim of discrimination. The European Communities (Burden of Proof in Gender Discrimination Cases) Regulations, 2001 (1) sets out the procedural rules to be applied in respect of the burden of proof to be discharged by parties in claims of gender discrimination. It requires that the complainant must, in the first instance, establish facts from which it can be inferred that she suffered discriminatory treatment. It is only when the complainant has established those facts to the satisfaction of the Equality Officer and s/he regards them as being of sufficient significance to raise a presumption of discrimination, that the burden shifts to the respondent to rebut the inference of discrimination raised. Both this Tribunal and the Labour Court have consistently applied a similar approach in respect of the burden of proof in non-gender claims of discrimination and I propose to adopt that approach in the instant case as regards the family status ground.
5.4 In the course of the Hearing the respondent accepted the accuracy of the list of tasks which the complainant stated she had responsibility for as Facilities Manager prior to her maternity leave. Ms. O gave evidence that she was clear in her mind that that following the extension of her contract of employment in November, 2003 until June, 2004, she was to report direct to Mr. Brennan and that her tasks included refurbishment of the Cork Office, Security matters and Archiving. I note that these were tasks which were the responsibility of the complainant before her maternity leave. I am therefore at a loss to see how the respondent could suggest that the complainant returned to the same job after maternity leave to that which she occupied before she commenced that leave, although I note that there was no reduction in her salary and I accept that she may have still had, in name but not in practice, the title of Facilities Manager.
5.5 The respondent, in its submission, states that its decision to extend Ms. O's contract for a further six months was to facilitate a more effective handover to the complainant on her return form maternity leave and to provide additional resources to the Facilities Department. In the course of the Hearing evidence was given by Ms. Sheehan that the decision to extend Ms. O's contract was taken by her, Mr. Brophy and Mr. Brennan to provide support for the complainant as the respondent felt the post was "too much for one person". In particular she referred to the fact the "Cork Office involved travelling and the complainant may not have wanted to travel". I note that the complainant had never previously indicated that this caused a difficulty and in fact she was never given an opportunity to express such an opinion. In addition, the decision to extend Ms. O's contract was taken some time before 4 November, 2003 - as the written offer to extend the contact was issued to her by Ms. Sheehan on that date. I note that this was approximately six weeks before the complainant returned to work. The respondent accepts that it made no contact with the complainant to discuss the restructured arrangements following her return as it was not its practice to contact staff on maternity leave - yet I note that Mr. Brennan contacted her by phone during this period to discuss issues around her sister's employment with the company.
5.6 The respondent submits that following the complainant's return from maternity leave it met with her to reassure her there was no change in her role within the organisation and made all reasonable efforts to allay the complainant's concerns in this regard. I note however, that despite these efforts the complainant remained unsure what role Ms. O had within the Facilities Department. I can understand how the complainant remained uncertain as it is clear that Ms. O was to report direct to Mr. Brennan on the projects assigned to her, yet Mr. Brennan stated at the Hearing that he expected the complainant to work on her own initiative and run the Facilities Department; that he considered both of them to have the same status within the organisation yet he never saw Ms. O as the Facilities Manager; that he expected the complainant to talk to Ms. O and direct her in prioritising her work yet she had no line management function over Ms. O. The respondent states that it was a common occurrence for employees - both permanent and fixed-term - to be assigned projects within an area under the responsibility of a particular manager but they would report directly to another manager. It adds that there are sound business reasons for such arrangements and that Ms. O's situation fell into this category. Whilst I accept that the respondent must be unhindered in responding in whatever fashion it considers appropriate to meet business needs, its actions cannot be such as to render them unlawful under the Employment Equality Acts. I accept the respondent's argument that there were business factors which underpinned its response in the instant case. However, I am not satisfied that other factors, which I believe constitute unconscious discrimination on the part of those persons, but discrimination none the less, were not also present.
5.7 The factors to which I refer are the comments of Ms. Sheehan set out at paragraph 5.5 above. In A Government Department v An Employee (Ms. B) (2) the Labour Court took account of the decision in Nagarajan v London Regional Transport (3) in holding "that the proscribed ground need not be the sole or even principal reason for the conduct impugned; it is enough that it is a contributing cause in the sense of being a significant factor". Moreover the Court stated that "it must always be alert to the possibility of unconscious or inadvertent discrimination and mere denials of a discriminatory motive, in the absence of independent corroboration, must be approached with caution" (4) . Having examined the totality of the evidence presented I am satisfied on balance, that the fact the complainant was returning from maternity leave and now had a young child significantly influenced the respondent's decision to restructure her job and remove certain tasks from her - the refurbishment of the Cork Office in particular. The complainant's performance had never previously been questioned and indeed I note Mr. Brennan's comments at the Hearing that "he had no problems with her quality of work". I do not accept that the respondent would have reached the same decision had they been faced with a man, or indeed a man or a woman who did not have a child, who was returning to work after a similar period of absence for whatever reason. In light of the foregoing I find that the complainant has established a prima facie case of discrimination on grounds of gender and family status and that the respondent has failed to rebut that inference. It follows therefore that the respondent discriminated against Ms. Gardiner on the grounds cited.
5.8 I must address that complainant's assertion that Mr. Brennan blamed her for the strained working relationship within the Department and consequently began to "micromanage" her work and refused or made it difficult for her to take annual leave. I accept the respondent's argument that Mr. Brennan's management style was more "hands on" than his predecessor and that his behaviour in this regard does not constitute discrimination of the complainant. As regards the annual leave issue it appears that the complainant operated an informal process with Mr. Brophy and assumed that this approach should operate with Mr. Brennan. I am satisfied that Mr. Brennan acted in accordance with the respondent's policy on annual leave and the fact that he did so does not constitute less favourable treatment of the complainant. Finally, I am of the view that the complainant made a conscious decision to maintain communication with Ms. O to a minimum, despite requests to the contrary by Mr. Brennan and that this most likely accentuated the tension within the Facilities Department. I note that both the complainant and Ms. O agreed that their working relationship after the complainant's return from maternity leave was "professional but cool". It appears to me that Mr. Brennan could well have been frustrated with the protracted tension between the complainant and Ms. O, particularly given the amount of time he devoted to the issue in January/February, 2004 but no evidence was adduced by the complainant to support her assertion that his behaviour towards her was in some way hostile because he blamed her for the problem.
6. DECISION OF EQUALITY OFFICER
I find that the respondent discriminated against the complainant on grounds of gender and family status, in terms of section 6(2) of the Employment Equality Acts, 1998-2004, when it failed to allow her return to the job she held immediately before maternity leave when she resumed her employment following that leave. In accordance with section 82 of those Acts I order the respondent to pay the complainant the sum of €15,000 by way of compensation for the distress suffered by her as a result of the discrimination. This award does not contain any element in respect of loss of income on the part of the complainant. I also order that the respondent put in place a mechanism to ensure employees who are absent from work on any sort of statutory leave, but maternity leave in particular, are advised of any issues which have a potential to impact on their employment with the respondent. Such a mechanism should have regard to the sensitivities of the circumstances for the absence in any particular case.
________________________________
Vivian Jackson
Equality Officer
28 February, 2006
notes
(1). S.I. 337 of 2001
(2) EDA061
(3) [1998] IRLR 73
(4) See also Nevins, Murphy, Flood v Portroe Stevedores [2005] 16 ELR 282