EDA1321

This is an appeal by Ms Deirdre McDermott (“the Complainant”) against a decision of the Equality Tribunal bearing the number DEC-E-2012-121 issued on the 12^thSeptember 2012. The Complainant had submitted a complaint to the Equality Tribunal to the effect that she had been discriminated against by Meath County Council (“the Respondent” or “the Council”) on the grounds of gender, marital status and family status in terms of Section 6 and contrary to Section 8 of the Employment Equality Acts, 1998 and 2008 in regard to access to employment, conditions of employment and promotion /re-grading, during her pregnancy and on her return to work following her maternity leave The Equality Officer conducted an investigation into the complaints and decided as follows: -

• . 6.1 I have completed my investigation of this complaint and in accordance with section 79(6) of the Employment Equality Acts, 1998-2008 I issue the following decision. I find -

  i. that the respondent did not discriminate against the complainant on grounds of gender and/or family status, in terms of section 6(2) of the Employment Equality Acts, 1998-2004, as she was allowed to return to the job she held immediately before maternity leave when she resumed her employment following that leave.

  ii. that the respondent did not discriminate against the complainant on grounds of marital status in terms of section 6(2) of the Employment Equality Acts, 1998 -2008 and contrary to section 8 of those Acts in respect of promotion/regrading/access to employment.

  iii. that the claim in relation to discriminatory treatment in the interview process was not lodged in accordance with the time limits provided for in section 77 (5) (a) of the Acts and I therefore have no jurisdiction to investigate this aspect of the claim.

The Complainant appealed to the Labour Court under Section 83 of the Act against the Decision of the Equality Officer. The case came on for hearing on 22^ndMarch 2013. Both parties made extensive written and oral submissions and were represented at the hearing.

Background

It is common case that the Respondent employed the Complainant on 1 August 2007 as a Temporary Executive Scientist. The Complainant’s fixed-term contract was due to expire on 14th February 2010 when the person she was replacing was due to return from a leave of absence.

During this period the Complainant became pregnant and advised her manager, Mr A, of this on 21 August 2008 after her 16-week scan. Around this time the Complainant responded to an advertisement for a vacancy for the post of Executive Engineer/Scientist with the Respondent. She was interviewed for the post on 8th of September 2008 and informed on 15th September 2008 that she had been placed second on a panel.

The Complainant continued working for the Respondent and in due course went on maternity leave. On her return to work she was assigned different duties to those she had performed before her maternity leave. Ultimately her employment came to an end when the person she was replacing returned to work.

Complainant’s Position

In relation to the competition for the post of Executive Engineer/Scientist, the Complainant maintains that her obvious pregnancy is the reason she was not placed first on the panel. She submits that she was visibly pregnant at the interview on the 8^thSeptember, being 19 weeks' pregnant at that time. She submits that her Manager, Mr A, advised her prior to the interview that a member of the interview panel was a good friend of his.

The Complainant maintains that she should have been placed first on the panel ahead of the successful candidate, Mr B. She submits that her qualifications and experience better qualified her for the post.

She maintains that on her return to work on 22 September 2009, following her maternity leave, her role within the Respondent Council had changed. She submits that Mr B, the successful candidate in the competition, was now doing the job she had been doing prior to her maternity leave. She maintains that she was assigned a lesser role with diminished responsibilities. She submits that, on the day on which she returned to work after her maternity leave, she had no desk, chair or computer. She submits that she was left to fend for herself and was in effect left without any resources with which to do her job. She further maintains that she had no access to her email at that time. She submits that she eventually located facilities for herself and commenced working from those on an ad hoc basis.

The Complainant submits that her role and duties were significantly diminished on her return to work. Prior to her maternity leave three staff members unofficially reported to her. This role was removed from her on her return to work.

Prior to her maternity leave she reported directly a Senior Engineer. On her return to work she reported to a Senior Executive Engineer. Senior Executive Engineer is the grade below Senior Engineer. Furthermore her duties were changed from waste management to waste water discharge licensing, a change that she maintains amounts to a significant downgrade in her duties.

She submits that had she not been pregnant she would have suffered none of these detriments. Accordingly she submits that she was discriminated against on the grounds of her gender, family status and marital status.

Respondent’s Case

The Respondent denies that it discriminated against the Complainant on grounds of gender, marital status or family status.

It submits that the Complainant was employed as a Temporary Executive Scientist during the period 1 August 2007 to 14 February 2010 to cover a vacancy created by the secondment of another employee.

It agrees that the Complainant applied for and was interviewed for the post of Executive Engineer/Scientist in August 2008 and that she was subsequently informed that she was placed second on a panel.

It maintains that the Complainant has not furnished any evidence of discrimination on the three cited grounds other than to allege that the person placed first on the panel is male.

It submits that it received 6 applications from candidates for the vacant position. It submits that an interview board was appointed to assess the candidates and to form a panel from which that and subsequent vacancies would be filled. It argues that in the absence of evidence of discrimination under the Act, it is not within the competence of this Court to substitute its judgement for that of the interview panel. It submits that no evidence of discrimination has been brought forward by the Complainant and accordingly the decision of the interview panel should stand.

The Respondent submits that the claimant returned to work on the same terms and conditions of employment she enjoyed prior to her maternity leave. It submits that the Complainant was employed as an Executive Engineer/Scientist both prior to and subsequent to her maternity leave. It agrees with her that her duties changed on her return to work but argues that her status and terms and conditions of employment did not alter in any way.

It submits that no staff reported to her prior to her maternity leave. It submits that the Complainant was employed as a professional officer and as such she was expected to maintain a normal professional relationship with lower graded staff in the office. She did not supervise them but did engage with them as a professional officer in the normal way.

It submits that the post of Senior Executive Engineer /Scientist was vacant when the Complainant commenced working with the Respondent Council. It submits that the Senior Engineer assumed the formal duties associated with that post and, in the absence of a Senior Executive Engineer/Scientist, communicated directly with the Complainant. It submits that this did not have the effect of promoting the Complainant to that grade. It submits that it meant that the Senior Engineer engaged with the staff of that Department directly. It submits that the Complainant is not claiming that she was recognised as filling the vacancy created by the Senior Executive Engineer/Scientist. It further notes that Complainant did not submit a claim for an acting-up allowance or otherwise engage with the Council regarding the grading of her post before or after her maternity leave.

The Respondent submits that the Complainant has been treated in a fair and transparent manner throughout her career with the Respondent. The Respondent refutes the allegations of the Complainant and submits that there is no evidence to substantiate the claims.

Preliminary Issue

The Respondent argues that the Complainant’s complaint regarding the outcome of the competition for a permanent Executive Engineer/Scientist is out of time.

It submits that the Complainant was informed of the outcome of the interview on 15th September 2008. It submits that the latest date by which her claim can be made in accordance with Section 77(5) of the Acts is 14th March 2009. The Complainant submitted her claim on 2nd September 2009 and the EE1 Form submitted records the last date of discrimination as 'continuing'.

The Complainant submits that the all of the incidents of which she complains relate to her pregnancy and maternity leave. She submits that she was in no fit condition to lodge a complaint while she was pregnant or immediately after the birth of her child. She submits that she submitted the complaint at the first reasonable opportunity. Moreover, she argues that the discrimination arising out of her pregnancy continued after her return to work. She submits that the two incidents are linked by the fact that they amount to an ongoing series of discriminatory acts related to her pregnancy the last one of which continued until her employment terminated. She submits therefore that the complaint regarding the filling of the vacancy in 2008 is part of a continuing series of discriminatory acts and is within the statutory time limit set out in the Act.

The Law

Section 77(5) of the Acts provides as follows:

"(a) Subject to subsection (6), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence or, as the case may require, the most recent occurrence of the act of discrimination or victimisation to which the case relates.

(b) On application by a complainant the Director or Circuit Court, as the case may be, may, for reasonable cause direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substitutes a reference to such period not exceeding 12 months as is specified in the direction".

Section 77(6A) of the Acts provides as follows:

"For the purposes of this section -
(a) discrimination or victimisation occurs -
(i) if the act constituting it extends over a period, at the end of the period"

Findings of the Court

The outcome of the competition for the impugned post was notified to the Complainant on 15^thSeptember 2008. If the Court finds that this was a single alleged discriminatory act that occurred on an identifiable date and that it did not continue over a period of time then the complaint is statute-barred. However, if the Court finds that it is part of a series of alleged discriminatory acts that extend over a period of time then it is part of a continuum of such acts and time runs from the date of the most recent discriminatory act.

The Complainant raises a second alleged act of discrimination that occurred when she returned to work following the end of her maternity leave. She submits that these two alleged acts of discrimination indicate an animus on the part of the Respondent Council to discriminate against her on the gender, family status and marital status grounds. She asks the Court to view the two alleged acts of discrimination together and to find that they are part of a continuing pattern of discrimination against her. Accordingly, she asks the Court to determine that the two acts of discrimination are properly before the Court as the later act of discrimination occurred in the six months prior to the making of the complaint under the Act.

In order for the earlier alleged discriminatory act to be considered by the Court it must decide whether any discrimination against the Complainant occurred within six months of the date of the complaint. The Court may only consider the earlier act of alleged discrimination if it finds that a discriminatory act occurred in the proceeding six months. If it finds no such discriminatory act occurred in that time then it may not consider the earlier act as it is statute-barred in those circumstances.

In considering whether a discriminatory act occurred in the relevant time the Court must determine that if the Complainant has discharged the burden of proof the Act places on her. The Labour Court set out the test to be applied in Melbury v. Valpeters EDA/0917. In that case the Court stated that section 85A: "places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule".

Section 6(1) of the Act, 1998 to 2008 provides that discrimination shall be taken to occur where "a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2)....." Sections 6(2)(a)(b) and (c) of the Acts define the discriminatory grounds of gender, marital status and family status as follows - "as between any 2 persons, ...
(a) that one is a woman and the other is a man,..
(b) that they are of different marital status...
(c) that one has a family and the other does not "...

It is well settled in the jurisprudence of the Court of Justice of the European Union and of the national Courts, that pregnancy is a uniquely female condition that enjoys special protection. Where a woman experiences unfavourable treatment on the ground of pregnancy such treatment constitutes direct discrimination on the grounds of gender within the Equal Treatment Directive. Also, the Maternity Protection Acts 1994 to 2004 which transpose into Irish law the provisions of the EU Pregnancy Directive, confer a general right to return to work with the same employer, in the same job and under the same conditions of employment as before the maternity leave (Section 26 of those Acts refers). This Court does not have jurisdiction to enforce rights under the Maternity Protections Acts. That is a matter for the Employment Appeals Tribunal. However, there is no legislative restriction on an employee referring a complaint related to treatment during pregnancy to this court on the ground of gender. The Employment Equality Acts 1998-2008 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. The Court is satisfied therefore that it has jurisdiction to investigate this aspect of the complaint.

The Complainant submits that she was not permitted to return to the same role or a suitable alternative role following her maternity leave and that this treatment amounts to discrimination on grounds of gender/family status. She argues that the changes to her role and responsibility amount to less favourable treatment within the statutory meaning of that term.

The period of pregnancy and maternity leave constitute a special protected period as outlined in the Court of Justice of the European Union Decisions inWebb v EMO Air Cargo (UK) Ltd,Brown v Rentokil Ltdand Dekker v Stichting Vormingscentrum. The Labour Court inTrailer Care Holdings Ltd Vs Deborah Healyreferred to the fact that "the jurisprudential principle that discrimination on grounds of pregnancy constitutes direct discrimination on grounds of sex is now codified in Directive 2006/54/EC on the Principle of Equal Treatment of Men and Women (the Recast Directive). This Directive provides, at Article 2. 2 (c), that any less favourable treatment of a woman related to pregnancy or maternity leave within the meaning of Directive 92/85/EEC constitutes unlawful discrimination for the purpose of that Directive". Futhermore it refers specifically toDekker v Stichting Vormingscentrumand the fact that "the Court of Justice of the European Union (formerly the ECJ) has made it clear that since pregnancy is a uniquely female condition any adverse treatment of a woman on grounds of pregnancy is direct discrimination on ground of her sex.”

The Complainant submits that when she resumed work, following her maternity leave in September 2010, she did not return to the post she held previously, but was instead assigned to a lesser role with fewer responsibilities. The Complainant asserts that the Respondent's actions in this regard constitute less favourable treatment of her contrary to the Employment Equality Act; 1998-2008. The Respondent rejects the Complainant's contention and states that she returned to the same post she held before commencing her maternity leave under the same terms and conditions of employment and was paid the same salary.

Staffing Responsibilities

The Complainant submits that she had a significantly reduced role in relation to staff on her return from maternity leave. She submits that she went from having staff reporting to her to having none and that she went from reporting directly to the Senior Engineer to now reporting to the lower graded Senior Executive Engineer.

At the hearing, the Complainant stated that prior to her maternity leave she was in charge of the Waste section with three staff reporting to her. She agreed that the three members of staff reported to her on an informal basis but agreed that they were generally regarded as her staff. She adduced copies of emails that were sent to her by the Senior Engineer that, she submits, confirm this point.

The Respondent at the hearing stated that no staff reported to the Complainant either before or after her maternity leave. It argued that there had been no downgrading of her role in this regard.

It is common case that no staff formally reported to the Complainant. However, the Complainant argues that the informal nature of the reporting relations staff had to her cannot be dismissed or ignored.

Findings of the Court

The Court does not accept the Complainant’s arguments in this regard. She was the most senior professional in an office that included a number of lower graded staff. The Court accepts the Respondent’s argument that such staff would normally engage with the higher graded professionals in the Department. The Court accepts the Respondent’s submission that such an engagement does not amount to a supervisory role. Rather it establishes a professional ranking that is distinct from the normal supervision that takes place in a complex office environment.

The Court also accepts the Respondent’s argument that there was a vacancy in the Department at Senior Executive Engineer/Scientist level and that this gave rise to the Senior Engineer communicating directly with the Complainant. Once the post of Senior Executive Engineer was filled by assigning the duties to a person at that grade the Complainant would have reported to the Senior Engineer through the normal structure. When she was assigned to a Department that had a normal structure she reported through that structure consistent with the grade at which she was employed. The Court therefore sees merit in this aspect of the complaint.

Gender Discrimination

The Complainant submits that when she returned to work on 22 September 2010 her office, desk and computer had been assigned to another worker and as a consequence she had nowhere to sit and work. She took matters into her own hands, found a desk, computer and commenced working.

She maintains that she attended a pre- arranged return to work meeting with a representative from HR and her new Manager. At that meeting she was told that she would now be assigned to "planning referrals". When she suggested that she start on some planning files and attend an upcoming planning course she was told by her Manager to take time to "settle in" first especially since she had just had a baby. The Manager later apologised to her and said he would find a core role for her soon.

The Respondent acknowledges that it was somewhat disorganised in providing accommodation and facilities and in assigning duties to the Complainant when she first returned to work after her maternity leave. It further submits that when work was assigned, within a few days of her return, it was at a level appropriate to her grade. It further states that her terms and conditions of employment remained unaltered.

Findings of the Court

The Court notes that the Complainant did not return to the precise duties she performed before she went on maternity leave. However, it is not disputed that her pay and conditions of employment remained unaltered. The Court also finds that the work assigned to the Complainant was work that would normally be carried out by a professional at the same grade. Accordingly, on that point the Court finds that the complaint of discrimination is not well-founded.

The Complainant argues that she should have been returned to the work she carried out before she went on maternity leave. She notes that she was employed to do the work of another member of staff who had left her job on secondment to another Department. She further notes that her employment was terminated when that secondment came to an end and the person she was replacing returned to work.

She argues that the person who replaced her in that post should have been appointed on an interim basis pending her return to work. She submits that she would not have been moved on to other duties had she not been absent on maternity leave. Accordingly, she argues that the actions taken arose directly out of her pregnancy and maternity leave and amount to discrimination on the gender ground.

The Respondent submits that the Complainant did not suffer any detriment when she was moved. It submits that her contract of employment was not for a specific post but to perform work at a specific grade. It submits that it at all times supplied the Complainant with suitable and appropriate work at that grade. It further submits that her terms and conditions of employment remained unaltered for the duration of her employment.

Findings of The Court

The Court accepts that the reallocation of the Complainant’s duties arose while she was on maternity leave. It also notes that the Complainant did not hold a contract of employment for that post but rather to perform work at a specific grade. The Court accepts the Respondent's argument that it provided the Complainant with work at that grade and on the terms and conditions on which she was employed. The Complainant identified no detriment that she suffered as a result of the decision to assign her to different duties.

Accordingly, the Court finds that no act of discrimination took place and the Complainant was employed at all times on work appropriate to her grade and strictly in accordance with the terms and conditions of her employment with the Council.

Accordingly, the Court determines that the Complaint is not well-founded.

Training Course

The Complainant submits that on her return to work she was denied access to a training course on planning law that would have been of assistance to her in the discharge of her new duties. She submits that this amounts to discrimination under the Acts.

The Respondent submits that the Complainant was not sent on the course as it related to planning law and that it was not directly relevant to the Complainant’s work.

Findings of the Court

Other than a desire to attend at the impugned course the Complainant adduced no evidence to show that it was of particular relevance to the performance of her duties. Moreover, the Court accepts the Respondent’s submission that the impugned training course was designed for staff with different needs to those of the Complainant. It further accepts that she would not have benefited significantly from participation in that course.

The Court has held that mere assertion cannot be elevated to the level of fact. A complaint under the Acts requires some evidence to support it. The Complainant presented no evidence that she was treated any differently to any other member of staff regarding her request to attend the course.

Moreover, the Court finds that the Respondent Council’s decision not to send the Complainant on the impugned planning course was motivated by its assessment of the relevance of the course to the work she was undertaking. Its judgement was that the course was not necessary to equip her to undertake the assigned work. From the information supplied, the Court finds this explanation for the Council’s actions reasonable. Furthermore the Court finds no grounds for linking the decision to the Complainant’s gender, marital status or family status.

Accordingly, the Court determines that this complaint is not well-founded.

Having examined the totality of the evidence presented in relation to this complaint of discrimination, the Court finds that the complainant returned to work with the same employer, at the same grade and under the same conditions of employment as before her maternity leave. In the light of this finding the Court determines that the Complainant has failed to establish a prima facie case of discrimination on the grounds of gender, marital status or family status. It follows therefore that the Respondent did not discriminate against the Complainant on the grounds cited.

Interview Process

As stated above the Court has found that the complaint regarding the decision to place the Complainant second on the panel for appointment to the advertised permanent vacancy was statute-barred unless it was part of a continuing act of discrimination. The Court has examined the alleged most recent act of discrimination and has determined that the Complaint was not well-founded. Accordingly, the alleged earlier act of discrimination cannot be part of a continuing act of discrimination. On that basis the Court concludes that the earlier complaint was in relation to a stand-alone incident and is statute-barred.

The Complainant seeks an extension of time in relation to that act on the grounds that she was pregnant, suffered a bereavement and gave birth within a short space of time and was not in a fit state to consult with a Solicitor and/or initiate proceedings under the Acts.

The Court does not accept this argument. The Complainant continued at work until she commenced maternity leave and discharged her duties to a very high level. The Court finds that the Complainant was in a position to consult with a Solicitor and to commence proceedings under the Acts other than for a number of weeks surrounding the birth of her child. The alleged act of discrimination complained of took place on 15^thSeptember 2008. The Complainant’s baby was born on 9^thFebruary 2009. However, the Complainant did not submit a complaint under the Act until 15^thSeptember 2009.

Section 77(5)(b) of the Employment Equality Acts 1998 to 2008 provides that, where reasonable cause can be shown the Labour Court may direct that a period not exceeding twelve months be substituted for the normal limitation period of six months. This Court, in the case of Cementation Skanska and a Worker (WTC/03/44 Determination No. 0426), albeit under different legislation (Organisation of Working Time Act), set out the basis upon which it would consider granting an extension of time under that Act. The Court stated that "in considering if reasonable cause exists, it is for the claimant to show that there are reasons, which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd".

The Court sees no reason not to apply this line of reasoning in this case. In that context the Court is not satisfied that the Complainant has established a causal link between the delay caused by the circumstances cited and the delay in bringing the complaint under the Act. Accordingly, the Court sees no basis for extending the time in this case.

In all of the circumstances therefore the Court determines that

• 1.That the Respondent did not discriminate against the Complainant on grounds of gender and/or family status in terms of Section 6(2) of the Employment Equality Acts, 1998-2008, as she was allowed to return to the job she held immediately before maternity leave when she resumed her employment following that leave.

  2.That the Respondent did not discriminate against the Complainant on the ground of marital status in terms of Section 6(2) of the Employment Equality Acts, 1998 -2008, and contrary to Section 8 of those Acts in respect of promotion/regrading/access to employment.

  3.That the claim in relation to discriminatory treatment in the interview process was not lodged in accordance with the time limits provided for in Section 77 (5) (a) of the Acts and the Court therefore has no jurisdiction to investigate this aspect of the complaint.

Signed on behalf of the Labour Court



Brendan Hayes
7th August, 2013______________________
JMcCDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.