THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2011
Decision DEC – E2015 – 064
PARTIES
Ms Sarah Jane Duggan and Ms Gayle Barry (represented by SIPTU)
and
Waterford Area Partnership (represented by IBEC)
File References: EE/2012/291
EE/2012/293
EE/2013/515
Date of Issue: 6th August 2015
Keywords: pregnancy – maternity leave – salary top-up of maternity benefit – custom and practice – financial circumstances of employer.
1. Claim
1.1. The case concerns three claims by Ms Sarah Jane Duggan and Ms Gayle Barry that Waterford Area Partnership Ltd discriminated against them on the grounds of gender and family status contrary to Section 6(2)(a) and (c) of the Employment Equality Acts 1998 to 2011, in terms of not being paid a top-up payment in addition to maternity benefit contrary to their terms and conditions of employment. Ms Barry also complains of victimisation contrary to S. 74(2) of the Acts.
1.2. Ms Duggan referred her complaint under the Employment Equality Acts 1998 to 2011 to the Director of the Equality Tribunal on 21 May 2012, respectively. Ms Barry referred her complaints on 22 May 2012 and on 3 October 2013, respectively. Two submissions were received from the complainants’ representative, on behalf of each of them, on 20 December 2012. A submission was received from the respondent, responding to all three complaints, on 27 February 2013. On 5 December 2014, in accordance with his powers under S. 75 of the Acts, the Director delegated the case to me, Stephen Bonnlander, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. On this date my investigation commenced. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to hold a joint hearing of the case on 23 January 2015, which was adjourned and concluded on 23 April 2015. Additional submissions were received from the parties subsequently. The last piece of correspondence relating to the complaint was received on 16 June 2015.
2. Summary of the Complainants’ Written Submissions
2.1. Ms Duggan submits that she commenced work in 1999 in a community development organisation which was absorbed into the respondent organisation in January 2011. She states that all her terms and conditions of work were protected in that transfer.
2.2. In 2011, Ms Duggan became pregnant and in November 2011 enquired about her maternity pay, as full maternity pay was one of her terms and conditions of employment. On 31 January 2012, she received a letter from the respondent CEO in which she was told that there was no finance to pay her maternity pay due to cutbacks in public funding.
2.3. Ms Duggan commenced her maternity leave on 3 February 2012. On 21 March 2012 a meeting took place at the respondent organisation where it was declared that there was a saving made due to two staff members being on maternity leave and one being on carer’s leave, and the workers were asked what those savings should be spent on. The relevant minutes are in the possession of the complainant and were appended to her written submission.
2.4. Ms Barry submits that she has worked for the respondent organisation since 2006. She, too, became pregnant in 2011, and like Ms Duggan, did not receive paid maternity leave and was told it was due to financial difficulties in the organisation, again due to cutbacks in public funding. However, in Ms Barry’s case, she received another letter from the respondent’s general manager on 6 March 2012, in which it was suggested that the reason given in his letter of 31 January 2012 was incorrect and that the correct reason for not getting fully paid maternity leave was that the arrangements pertaining to the complainant’s maternity leave had been decided in June 2008, and that according to the respondent, the complainant had only been appointed to her role in December 2009.
2.5. Ms Barry was the other staff member on maternity leave whose leave brought about savings for the organisation as referenced in the minutes described in paragraph 2.3 above. Ms Barry further complains that she has since had another pregnancy, in which likewise, she did not receive any maternity pay from the respondent.
2.6. Both complainants maintain that not topping their maternity benefit to the levels of their salaries amounts to discrimination on the ground of gender in their terms and conditions of employment.
3. Summary of the Respondent’s Written Submission
3.1. The respondent denies discriminating the complainants as alleged or at all. It submits that the decision by the respondent’s board not to pay Ms Duggan and Ms Barry maternity pay was solely due to the budget cutbacks which the organisation, as a publicly funded body, experienced between 2008 and 2012. The respondent is a completely state-funded organisation. The respondent appended a variety of documentary evidence in support of their position to their submission.
4. Conclusions of the Equality Officer
4.1. The issue for decision in this case is whether the complainants were discriminated against in their terms and conditions of employment within the meaning of the Acts, and whether Ms Duggan was victimised within the meaning of the Acts.
4.2. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to S. 85A of the Acts. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the respondent.
4.3. In coming to my decision, I have considered all oral and written evidence presented to me by the parties.
4.4. The respondent company is a social enterprise funded, via a government agency, from Exchequer funds. It works in the areas of information and training, education, enterprise and employment and community development. It was merged with the Ballybeg Community Development Project in 2011, following a Ministerial directive aimed at streamlining these social enterprises. Ballybeg is a deprived area in Waterford city. The respondent did have its funding reduced in line with the budget reductions nearly all publicly funded enterprises, agencies and projects suffered in the recession. In terms of the employment situations of the complainants and their comparator, it transpired that the comparator, Ms C., was never an employee of the respondent. Ms Duggan was her colleague in Ballybeg Community Development Project, and transferred into the respondent’s employment when the merger happened, whereas Ms C did not. Ms Barry was only employed by the respondent.
4.5. Considerable argument was presented from both sides on whether paid maternity leave can be regarded as part of the complainants’ terms and conditions of employment, or whether it is in the discretion of the employer. Further considerable argument went on between the parties as to whether there had been a board decision in 2008 to cease maternity pay, whether it was minuted and how it was communicated to staff. The updated staff handbook simply states the legal position.
4.6. There was no dispute that prior to the maternity leaves of the two complainants, it had been the practice of the respondent to pay staff during maternity leave, that is, to top up their maternity benefits to the level of their salary. According to the local SIPTU representative, Mr W., who was present at the relevant meetings in 2008 and who gave evidence at the hearing, it was nowhere explicitly stated that the practice of making these top-up payments would cease. I find that this is supported by the documentary evidence. He further stated that if such a decision had been explicitly communicated to staff, there would have been resistance. The minutes only speak of “updated procedures” and the updated staff handbook then simply reflects the law. This is also what was circulated to staff. Nowhere was it highlighted that a decision had been taken not to top up maternity benefit any longer. Accordingly, there were no adverse responses from staff. On balance, I am satisfied that neither staff nor their union representative were ever expressly told, never mind consulted, on the decision the respondent claims to have made in 2008 not to top up maternity benefit any longer.
4.7. Another detail which casts doubt on the respondent’s evidence in this matter is that the original response both complainants received when they wrote to enquire about their top-up pay was that it could not be paid due to financial constraints. At the hearing of the complaint, the respondent’s CEO claimed to have written these letters in haste, and that they did not reflect the correct position. I find this doubtful. It seems more likely overall that he tried to save face with his second letter, in which he referred to the disputed 2008 decision, because by then it had become known that the respondent would indeed have had the means to pay the top-up. I summarise further details of this evidence below.
4.8. While the case law on discrimination in connection with pregnancy has mostly focussed on dismissal during pregnancy, the repeated statement by the Court of Justice of the European Union that pregnancy and maternity leave constitute a specially protected period, for example in case C-394/96, Brown v. Rentokil, has taken on the extended meaning that terms and conditions of a pregnant worker, or a worker who is on maternity leave, ought not be changed except in extenuating circumstances unconnected with the pregnancy. This normally means extenuating financial circumstances. The Labour Court case of Winston Jewellers v. Anne Mason [EED032], while also concerning a termination of employment, in that case a redundancy due to a documented fall in business, would be an example of such circumstances.
4.9. Of course, employers have no legal obligation to top up a staff member’s maternity benefit to the level of her salary. But absent a clearly communicated, express policy change, which includes a meaningful consultation with staff, I find that resiling from a continuation of custom and practice in the absence of extenuating financial circumstances constitutes a less favourable treatment of a worker during a specially protected period of her employment, and, in line with longstanding CJEU jurisprudence, is ipso facto discrimination on the ground of sex.
4.10. With regard to the respondent’s ability to pay these top-ups, the complainants presented two important pieces of evidence. The first of these was a draft budget spreadsheet which was given to Mr W., the local SIPTU representative, from which it is clear that neither worker was replaced during her maternity leave, and that the salary for each was budgeted as normal. This was the case despite the overall exchequer funding reductions which the respondent had been subjected to. The respondent confirmed the authenticity of the spreadsheet, but argued that it was simply a budget draft. That may well be the case, in terms of that it represented one particular spending proposal, but I am satisfied that it reflects the overall financial position of the respondent. Therefore, to simply top up the State maternity benefit to the level of each complainant’s salary would still have saved the respondent money, since it would have had to pay only a part of each salary.
4.11. The second piece of evidence were the meeting minutes already mentioned in paragraph 2.3 above, which recorded a meeting after the two complainants had gone on their maternity leaves. In the minutes, the savings achieved apropos of their absence are highlighted and the staff is canvassed to suggest projects on which the saved money can be spent. I find that these two pieces of evidence, taken together, wholly undermine the respondent’s contention that it was unable to top up the complainants’ maternity in line with previous practice and that the complainants are therefore entitled to succeed.
4.12. With regard to Ms Barry’s complaint of victimisation, I find that no evidence was adduced to make a prima facie case of victimisation within the meaning of the Acts. Therefore, this part of her complaint must fail.
5. Decision
5.1. Based on all of the foregoing, I find, pursuant to S. 79(6) of the Acts, that Waterford Area Partnership discriminated against Ms Sarah Jane Duggan and Ms Gayle Barry in their terms and conditions of employment on the ground of gender. It did not victimise Ms Barry within the meaning of the Acts.
5.2. In accordance with Section 82 of the Acts, I hereby order that the respondent pay each complainant their arrears of pay, that is, the pay they would have received if their State maternity benefits would have been topped up to reach their normal salaries in line with previous practice. This part of the awards is subject to tax, being in the nature of pay.
5.3. I further order that the respondent pay each complainant €2,500 in compensation for the effects of the discrimination. The size of these awards takes into account the exchequer-funded, non-profit nature of the respondent’s undertaking. They are not in the nature of pay and therefore not subject to tax.
______________________
Stephen Bonnlander
Equality Officer
6 August 2015