EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2015-130
PARTIES
Ms. Niamh Slattery
(Represented by Mr. Stephen O’Sullivan B.L)
-v-
National Organic Training Skillnet
(Represented by Mr. Gerard Cullen, Solicitor)
File reference: EE/2014/177
Date of issue: November 2015
HEADNOTES: Employment Equality Acts – Gender & Family status – Discriminatory dismissal, conditions of employment
1 DISPUTE
1.1 This dispute concerns a claim by the Complainant, Ms. Slattery that she was discriminated against in relation to her conditions of employment on the grounds of gender and family status contrary to Section 8 of the Employment Equality Acts.
1.2 The Complainant referred her claim to the Director of the Equality Tribunal on the 19th March 2014 under the Employment Equality Acts. On the 12th of August 2015, in accordance with her powers under Section 75 of the Acts, the Director delegated the case to me, Shay Henry, 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 which date my investigation commenced. Submissions were received from both sides and in accordance with Section 79(3A) of the Acts and as part of my investigation I proceeded to a hearing on the 2nd September 2015.
1.3 This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 83 (3) of the Workplace Relations Act 2015.
2 Complainant’s Submission
2.1 The Complainant commenced part-time employment – three days each week - with the Respondent in April 2008 on rolling fixed term contracts. The office is based in Drumshanbo Co. Leitrim.
2.2 On 6th January 2014 the Complainant returned to work at the Drumshanbo office to report in from maternity leave. The remaining two days’ work that week were carried out from her family home in accordance with her working conditions prior to going on maternity leave which took in her family responsibilities. The next week she worked her three day week from home as usual. On 14th January there was a Board meeting of the National Organic Training Skillnet (NOTS) held in which it was decided that she was no longer allowed to work from home but was required to attend the Drumshanbo office each day – a four hour round trip from her home in Birr, Co. Offaly.
2.3 The decision of the Board was communicated by Mr. Sean McGlóin, the Complainant’s manager. The Complainant informed Mr. McGlóin that she did not accept that her employer could change her terms and conditions of employment without consultation and regard for her as a mother of three small children under four and a half years of age and the responsibilities of arranging suitable care for them.
2.4 The reply from the Respondent on 22nd January 2014 claimed that the work could not be carried out remotely. The Complainant replied on 2nd February making it clear that she did not accept the requirement to work from Drumshanbo and explained how the work duties referred to by the Respondent could easily be carried out remotely as they had been from December 2012 to June 2013 following her family’s move from Carrick-on-Shannon, Co. Leitrim to Birr, Co. Offaly, and prior to the commencement of her maternity leave. In particular she addressed the issue of being able to be contacted by phone and suggested utilising the SIM card previously supplied which had been used with no complaint or query. She also suggested that necessary hard copy paperwork could be made available to her by the same arrangement as had operated previously.
2.5 On 24th February the Respondent communicated again to the effect that the arrangement for working from home was of a temporary nature. The Complainant pointed out that her family move to Birr was never temporary and neither was the arrangement to work her three day week from the family home. On 3rd March the Complainant wrote to the Chairman of the Steering Group, Mr. John Brennan advising that she was taking a case to the Equality Tribunal.
2.6 On10th March the Respondent wrote again requiring the Complainant to return to work in the Drumshanbo office on 24th March or she would be deemed to have resigned her position. The Complainant turned up on the day at 11.a.m. and spoke to the Chairman, Mr. Brennan. She informed him that the most she could offer was one day per week in the Drumshanbo office and the other two days from Birr. Mr. Brennan undertook to put her request to the Board. At approximately 3.00.pm the Complainant was summoned without prior warning to go for a ‘chat’ with Mr. McGlóin and Mr. Brennan. The content of the chat was not made known in advance nor was the Complainant offered an opportunity to bring representation. The ‘chat’ turned out to be a discussion as to her future in the National Organic Training Skillnet.
2.7 In a further communication on 2nd April the Complainant was summoned to attend the office in Drumshanbo on 14th April or be deemed to have resigned. The Complainant attended on the day but made it clear that she would be working the other two days from home that week. Mr. McGlóin phoned her as she was driving home to say if she did not turn up the following week she would be deemed to have resigned. The Complainant sent a text that evening requesting confirmation of the conversation in writing but none was received.
2.8 Following a further communication to Mr. Brennan on the Wednesday of the following week a reply was received to the effect that she was expected to attend the Drumshanbo office on Mondays, Thursdays and Fridays from 10.00.a.m. until 4.00.pm requiring a further adjustment to childminding requirements. It is submitted that this constitutes further discrimination on the gender or family grounds under the Employment Equality Acts.
2.9 By reply on 17th April the Complainant reiterated that she had not resigned her position but wished to resume under her old terms and conditions (three days per week from home with one day a month in the office) or under the new proposal she had made of one day per week in the office and two from home.
2.10 On 19th April the Respondent replied reaffirming their previous position, that she was expected to attend the Drumshanbo office on Mondays, Thursdays and Fridays from 10.00.a.m. until 4.00.pm
2.11 On 28th April, after the post had been advertised, the Complainant wrote stating she had not resigned but had been unfairly dismissed. On 1st May the Respondent replied rejecting that the Complainant had been dismissed but rather had resigned as she had not attended the office for the required three days per week.
2.12 It is the contention of the Complainant that the employer was required to give reasonable consideration to a request for flexible working and that no such consideration was given, in particular to the compromise offer of working one day per week in the office and two from home.
3 Respondent’s submission
3.1 The Complainant’s contract of employment specified her place of work as being in the Enterprise Centre, Drumshanbo, Co. Leitrim. In December 2012 the Respondent agreed to facilitate the Complainant to work in her role as Network Administrator from home for a trial period commencing in December 2012 and processes were put in place to facilitate this arrangement. This was a temporary arrangement and not a change of terms and conditions of employment.
3.2 During the trial period, shortly before the commencement of her maternity leave at the beginning of July, the Network Manager, Mr. Sean McGlóin discussed with the Complainant concerns raised by the Board about the arrangement which they believed was not working satisfactorily. The Board had decided to review the position on her return from maternity leave.
3.3 The Complainant requested a continuation of the arrangement on her return from maternity leave. This request was considered by the Board at a meeting on 14th January and it was decided that the temporary arrangement would not be feasible for the business moving forward. This decision was communicated to the Complainant by letter on 22nd January. The Complainant did not accept the rationale and indicated that the duties could be carried out remotely and was prepared to only continue the job remotely. She further stated that if this was not agreed she would take a case to the Equality Tribunal.
3.4 The Board considered the points made by the Complainant and determined that the remote working arrangement would not work for the following reasons;
· Dealing with phone queries; diverting the phone switchboard was not practical as calls were not exclusively administrative queries. For the temporary period the Complainant had been provided with a SIM card. However, due to poor coverage, she was not always contactable. In addition, the Complainant sometimes worked evenings instead of days and had the phone turned off. In practice calls were answered by the person at reception who was not an employee of the Respondent, an arrangement that could not continue indefinitely.
· Occasionally visitors called into the office and needed to be dealt with by the Administrator in person.
· Hard copy files often needed to be referred to at short notice and these could only be held at National Organic Training Skillnet office in line with Skillnet’s requirements.
· Data input required access to hard copy paperwork. For the temporary period of remote working a process was put in place whereby files were copied/scanned and delivered to or picked up by the Complainant. This was not sustainable in the long term due to time delays in inputting data which related to grant drawdown impacting on cash flow and also the resource implications involved in preparing the documentation for transportation to the Complainant.
3.5 The Respondent considered each communication received from the Complainant and continued to pay her until the end of April 2014.
The Respondent acknowledges that remote employment may be possible in relation to certain forms of employment. However, it has proven in this instance, on the basis of experiment by trial and error, to be neither feasible nor economic. The Respondent considered the compromise offer put by the Complainant but did not think it met the business needs.
4 Conclusions of Equality Officer
4.1 I have to decide if the complainant was discriminated against in relation to conditions of employment on the grounds of gender and family status. In reaching my decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence presented at the hearing.
4.2 At some stage during 2012 the Complainant determined to move to Birr – approximately a two hour drive from Carrick-on-Shannon - and closed the purchase of a house there in October 2012. The decision to move to Birr, and the eventual purchase of a house there, took place a number of months before she raised the issue of remote working with her employer. There is no suggestion that employer made any agreement regarding remote working before the house purchase was finalised or during the period when the Complainant was planning to move.
4.3 The agreement to the remote working arrangement was on a trial basis according to both the Complainant and the Respondent. It is evident therefore, that it would have to work to the satisfaction of both parties. The fact that the Respondent was unhappy was communicated to the Complainant before the commencement of her maternity leave. Furthermore, during the trial period, the Respondent recruited an additional member of staff for one day a week to carry out some of the normal activities previously carried out by the Complainant when she was based in the office. The Respondent has given evidence that this additional cost associated with this arrangement could not be sustained.
4.4 The meeting on 24th March was not in the nature of a disciplinary meeting but rather to afford the Complainant the opportunity to discuss the issue of remote working and therefore there was no requirement to offer her representation at the meeting.
4.5 At the Hearing a commitment was given by the Respondent to forward the minutes of the Board meetings at which the issue of the Complainant’s remote working was discussed. The minutes were supplied and it is evident that, notwithstanding the absence of detail, the issue was discussed on several occasions.
4.6 Furthermore, I believe the Respondent did give reasonable consideration to the request. This is evidenced by the fact that the company agreed to the arrangement on a trial basis to see if it would work. The Complainant had no statutory or contractual entitlement to the arrangement on a permanent basis and no other employee was facilitated in this way. I therefore conclude that the decision to ask the complainant to revert to her previous working arrangements was not linked to her pregnancy and would have been taken if she had not gone on maternity leave.
5. DECISION
5.1. I have investigated the above complainant and make the following decision in accordance with section 79 of the Employment Equality Acts and section 41 (5) (a) (iii) of the Workplace Relations Act 2015 that:
· the complainant has failed to establish a prima facie case of discrimination in relation to conditions of employment on the gender ground, and
· the complainant has failed to establish a prima facie case of discrimination on the family status ground.
_____________
Shay Henry
Adjudication/Equality Officer