ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002360

Complaint(s)/Dispute(s) for Resolution:

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00003213-001	15/03/2016

Date of Adjudication Hearing: 07/11/2016

Workplace Relations Commission Adjudication Officer: Michael McEntee

Procedure:

In accordance with Section 79 of the Employment Equality Act, 1998, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

1: Complainant’s Submission and Presentation:

The Complainant commenced working for the Respondent on 5th March 2010 as a sub-editor on a casual grade 1 contract. It was the Respondent’s position at that time that due to a recruitment embargo and fluctuating work needs they could only hire sub-editors on a freelance basis. This continued until 20th April 2012 when the Complainant left to take up a more senior role with another employer having stated her desire to return to the Respondent if it were in a position to hire and promote staff again. One year later the Respondent contacted the Complainant and told her that a more senior role was available if she was interested in applying. As the Complainant had just become pregnant she decided it would be unfair to apply and then have to be absent on maternity leave although she would lawfully have been so entitled. On 8th October 2014 the Complainant returned to work for the Respondent on a casual grade 1 contract. However she was offered an elevated grade 2 position as assistant chief subeditor as part of a job share commencing on 10th November 2014. This contract was for a three-month period as the Respondent still maintained that due to difficult trading conditions the recruitment embargo was still effectively in place. The contract rolled over in three-monthly cycles. At this time there were approx 10 employees on the three-month rolling over contracts which the Respondent sought to justify by imminent reorganisation within the Respondent company. The reorganisation failed to materialise and the Complainant’s contract had rolled over for the third time during which time the Complainant became pregnant. The Complainant went on maternity leave on 6th July, 2015, at which time she was informed by the Respondent that her contract would be finishing on 31st August 2015 “due to on-going editorial digital and print reorganisation within the department” and that she “was entitled to return to” her “primary relationship” with the Respondent. This resulted in the Complainant being paid some of her maternity leave pay at the lower grade 1 rate. All of the other employees continue to work at the grade 2 level on the rolling contracts. An employee, AB, who job-shares with the Complainant, has her shifts rostered at the grade 2 level whilst the Complainant's are rostered at the grade 1 level. A male employee who was recruited after the Complainant was promoted over the Complainant whilst she was on maternity leave.Towards the end of her maternity leave, the Complainant repeatedly sought to ascertain the grade she would be returning at due to the fact that the reorganisation of the company had not materialised and was finally told by AC of the HR Department by telephone on 18th January that she was returning as a contracted grade 2 employee. At the same time the Complainant and all the staff in her department received a roster showing the Complainant returning at the grade 2 level fulfilling a senior role. However, on her first day back in the office on on 17th February, 2015, she was informed that her department head had been told by HR that she was actually now a grade 1 casual employee. This was despite the fact that the department head felt the Complainant was required in the senior grade 2 role as shortages were occurring. A new roster had been posted up showing the Complainant in the more junior sub-editor role which prompted a number of other staff members to inquire what had happened to cause her reversal. All the other contractors had by this point been told that their contracts would be continuing 'until further notice'. The Complainant had made childcare arrangements for a number of late shifts as part of her rostered grade 2 work and had to try to reorganise these at short notice to work the alternate shifts.2. In the circumstances on her return to work after her pregnancy the Complainant was not afforded the same terms and conditions she had enjoyed prior to her maternity leave and a new male employee who was engaged by the Respondent after the employment of the Complainant remains in a more senior position than the Complainant. The Complainant continues to be working on terms less favourable than prior to her maternity leave. It also appears that the Respondent is favouring male employees and/or female employees whose family status may not cause the same issues as a female employee with younger children.3. In the circumstances, being the promotion of the male employee, the Complainant was discriminated against on the grounds of her gender.4. In the circumstances, being the failure to return the Complainant to her three month rolling contracts similar to other employees, the Complainant has been discriminated on the grounds of her family status.5. In the circumstances it is submitted that the Complainant was treated unfairly during and after her maternity leave.6. Despite her best efforts the Complainant has been unsuccessful in seeking the resolution of the complaints with the Respondent.7. The Complainant’s claim is pursuant to sections 6(2)(a), 6(2)(c) and 6(2)(A) and which it is submitted derive from the Recast Directive (Council Directive 2006/54) Article 15 of which specifically prohibits any unfavourable alterations to the terms and conditions of employment of any female following her return to work from a period of maternity leave. Article 15 provides as follows:-“A woman on maternity leave shall be entitled, after the end of her period of maternity leave, to return to her job or to an equivalent post on terms and conditions which are no less favourable to her and to benefit from any improvement in working conditions to which she would have been entitled during her absence”.8. It is submitted that the treatment of the Complainant by the Respondent as set out in paragraph 1 above is unacceptable and discriminatory on the grounds of gender and family status. The Complainant has been placed in an undesirable situation where her terms and conditions of employment are less favourable than pre maternity leave and accordingly, sections 6(2)(a), 6(2)(C), 6(2)(A) and Article 15 have been and continue to be breached by the Respondent as against the Complainant. The extension of grade 2 contracts to the Complainant’s colleagues who do not have family status and/or whose family status is less likely to interfere with work commitments raise the inference of discrimination on the family status ground. The number of posts filled by male employees, the extension of grade 2 contracts to said male employees and the promotion of the said male employee during the Complainant’s absence on maternity leave and his retention by the Respondent in the said promoted position gives rise to the inference of discrimination on the gender ground. In this regard the Complainant will rely, inter alia, on the decision of Campbell v Bank of Ireland Private Banking (DEC-E2013-046) and the decision of the Workplace Relations Commission in Lisa McSheery v National Cancer Registry Board (DEC-E2013-046).

Summary of Respondent’s Submission and Presentation:

The employment facts as set out in the Complainant’s claim form were not disputed.

The Complainant had commenced employment as a Casual Sub Editor at Grade 1 on the 8^th October 2014.

The Complainant was offered and commenced a grade 2 Sub Editor position on the 10^th November 2014 on a three month basis. This Grade 2 position was renewed twice. The Grade 2 position finished on the 31^st August 2015 while the Complainant was on Maternity Leave.

These types of Temporary and or Fixed Term contracts are necessitated by the highly competitive nature of the modern print/digital newspaper business. In the claimant’s case it was stated that he contract was being extended due to the “ongoing editorial digital and print reorganisation”

While on Maternity Leave the Complaint was paid initially at Grade 2 and latterly (last 18 weeks) at Grade 1

The Complainant's Maternity leave commenced on the 6th July 2015 and ended when the Complainant returned to the Respondent in week commencing the 14^th February 2016.

I January 2016 the Respondent HR Manager, Ms. AC, contacted the Complainant to establish her return date. There was no suggestion of the Complainant ever returning at Grade 2 in the HR Representatives contacts.

The issue only came to a head when the Complainant referred the matter to the WRC in March 2016. The Respondent contacted the Complainant and suggested that the matter at issue could best be resolve by way of the Internal NUJ House Agreement procedures.

A meeting was arranged and took place with the Complainant at on the 7^th April 2016. The Complainant was offered full representation rights, including the use of her Solicitor, but no progress was recorded. The Complainant resigned that evening.

The Respondent maintained that the decision not to renew the Grade 2 position on the 31^st August 2015 was based entirely on a business decision due to “ongoing editorial digital and print reorganisation within the department” and resolutely denied that the Complainant was discriminated against on the grounds of her gender or family status.

A legal submission was submitted in addition as well as significant oral evidence from Respondent Managers

Decision:

Section 79(6) of the Employment Equality Act, 1998 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

Issues for Decision:

Has the Complainant succeeded in establishing a prima facie case of Discrimination under Sections 6 and 8 of the Employment Equality Act, 1998 as required by Section 85 of the Act to substantiate her case?

Was the Complainant discriminated against on the Grounds of Gender, Family Status, and Conditions of Employment (the Grounds claimed on the Claim Form) ?

If so has the Respondent a requirement to furnish a rebuttal case?

How successful or otherwise for the Respondent is any rebuttal defence?

Legislation involved and requirements of legislation:

Employment Equality Act, 1998.

Decision:

6: 1 In reaching my decision I have taken into account all of the submissions, written and oral, made by the parties. Section 6(2A) of the Act states that discrimination on the gender ground shall be taken to occur where, on a ground related to her pregnancy or maternity leave, a female employee is treated, contrary to any statutory requirement, less favourably than another employee is, has been or would be treated. Discrimination on the ground of family status (in the Complainant's case as a parent) is also prohibited.

6:2 Section 85A of the Act sets out the burden of proof which applies to claims of discrimination. It requires the Complainant to establish, in the first instance, facts upon which she can rely in asserting that she was discriminated against. It is only where such a prima facie case has been established that the onus shifts to the Respondent to rebut the inference of discrimination raised.

6:3 Legal Issues /Precedents

The Equality Tribunal, in the first instance and the Labour Court on appeal have both extensively considered ( Trailer Holdings and Deborah Healy [1],O Brien v Persian Properties Ltd[2] and Rottapharm ltd v Beata Nowakowska[3])

the concept of whether a Complainant’s pregnancy influenced a Respondent to select her for redundancy and or non renewal or other wise of employment contracts while on maternity leave.

In a line of authorities starting with the decision in C-177/88,Dekker v Stichting Vormingcentrum voor Junge Volwassenen[1990] ECR 1-3841 [4]the Court of Justice of the European Union (formally 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. Thus, the law of the European Union recognises the reality that to treat a woman less favourably because she is pregnant is to discriminate against her because she is a woman. That can never be justified. Issues such as disruption caused to an employer’s business or costs associated with accommodating a pregnant woman in employment are, as a matter of Union law, wholly irrelevant.

Since the decision in Dekker ( 4 above) the protection afforded to pregnant women in employment has been strengthened considerably in the case law of the CJEU and in the legislative provisions of the European Union. Equality on grounds of gender is now expressly guaranteed by Article 23 of the Charter of Fundamental Rights of the European Union. Article 33.2 of that Charter also incorporates the prohibition of dismissal on grounds of pregnancy established in jurisprudence of the CJEU. It provides: -

To reconcile family and professional life, everyone shall have the right to protection from dismissal for a reason connected with maternity and the right to paid maternity leave and to parental leave following the birth or adoption of a child.[5]

Refusal to extend a fixed term contract has been found to constitute discrimination in a growing body of EU case law Teledanmark ALS v Handels org Kontorfunktionoernes Forbund [6]and Melgar v Ayuntamento de los Barrios[7]

Directive 92/85/EEC (the Pregnancy Directive) provides a comprehensive legal framework in which special protection is afforded to the safety health and welfare of pregnant women in employment. Article 10 of the Directive is of particular and far reaching significance. It provides: -

In order to guarantee workers, within the meaning of Article 2, the exercise of their health and safety protection rights as recognised under this Article, it shall be provided that:

Member States shall take the necessary measures to prohibit the dismissal of workers, within the meaning of Article 2, during the period from the beginning of their pregnancy to the end of the maternity leave referred to in Article 8 (1), save in exceptional cases not connected with their condition which are permitted under national legislation and/or practice and, where applicable, provided that the competent authority has given its consent;
The importance of this latter provision, in deciding cases within the ambit of the Equal Treatment Directive, has been emphasised by the CJEU on a number of occasions. Most recently in case C-232/09Danosa v LKB Lizings SIA[2011] CMLR 45, at 60,[8] the Court said: -

“It is precisely in view of the harmful effects which the risk of dismissal may have on the physical and mental state of women who are pregnant, have recently given birth or are breastfeeding, including the particularly serious risk that pregnant women may be prompted voluntarily to terminate their pregnancy, that, pursuant to Article 10 of Directive 92/85, the EU legislature provided for special protection for women, by prohibiting dismissal during the period from the beginning of pregnancy to the end of maternity

Article 2( 2) of the Recast Directive [9] provides that women on maternity leave retain their employment rights .Article 15 allows a return to work in the same job

6:4 Taking these legal precedents as offering guidance and accepting that all cases turn on their own facts it is now necessary to look at the pertinent facts in this case.

Pertinent Facts of the Case

The Complainant commenced employment on the 8th October 2014 as a Grade 1 Casual and was on the 10th November 2014 was offered a Grade 2 position on a specified purpose (SP) contract for three months. This SP contract was renewed on two occasions finally terminating on the 31st August 2015.

In the contracts exhibited in evidence the Specific Purpose was “On going editorial and digital print reorganisation”

In oral evidence the Respondent Head of HR Ms.X stated that this type of employment relationship was of necessity common place in the organisation in view of the many commercial and organisational challenges faced by the Respondent. In general the contracts were extended. The Complainant gave evidence of numerous colleagues in similar position to herself who had their contracts extended without ceremony save for almost routine letters from HR giving dates of extensions etc.

Evidence was given in relation to the group of 10 staff that formed the Complainant’s immediate work group. It was clearly her understanding that she would have her contract extended over at the end of August 2015 rather than be returned to her Grade 1 positon – her substantive post which she had occupied for approximately only 4 weeks in the period since October 2014. The only substantive difference between herself and her colleagues ,she maintained in oral evidence, was that she was absent on maternity Leave while her colleagues who were extended were not.

The rationale given by the Respondent for the non-extension of the Complainant’s contract was the changing commercial environment of the Respondent which removed the requirement for the Grade 2 position occupied by the Complainant prior to August 2015.

The Complainant contacted the Respondent in December 2015, prior to her return to clarify her terms on return. The chief Sub Editor, Mr.ZX, effectively her Line Manager, told her he did not know about her precise return Contract terms. In mid-January (on or about the 18th January) the Complainant had a conversation with Ms. AC of the HR Dept. who informed her that she would be returning as a “contract Employee” and a Staff Roster was published showing her listed as a Grade 2.

The contents of this conversation were contested by the Respondent Manager who in direct evidence maintained that no assurances were ever given other than the Complainant would return as a Grade 1. However on her return on the 17th February 2016 her superior Mr. ZX informed her that he had been contacted by HR and that she was returning as a Grade 1. According to her oral evidence and accepting that it was hearsay her colleagues expressed considerable surprise at this

The key issue is whether or not the “Non Extension “ of the Grade 2 contract as described in a situation where this was effectively ,if not the norm, at least a very common practice, discriminatory against a pregnant staff member ?

Taking the legal precedents referred to above at 6:3 and in particular the ECJ landmark case of C-177/88,Dekker v Stichting Vormingcentrum voor Junge Volwassenen[1990] ECR 1-3841 I have to find that the non-renewal of the SP Contract in August 2015 , where such renewals were quite normal, raised the clear inference of discrimination.

The Complainant was on Maternity Leave away from the day to day business. The fact that she had been written to in April 2015 notifying her that her Fixed Term was to end in August 2015 was not of sufficient weight to allow the Respondent rely on it. These extension letters were part and parcel of the business model of the Respondent and the Complainant was entitled to take a somewhat relaxed view of them. She had already received two such letters precursory to an almost automatic renewal of her Grade 2 status.

Bearing in mind the very strong legal arguments (referred to above) in favour of a pregnant staff member retuning to a similar type position to that which she occupied prior to taking her maternity leave and bearing in mind the common sense position that the Complainant was not actually physically present and would not be so until January 2016 I failed to see why the Respondent did not simply maintain the status quo at Grade 2 until the Complainant retuned. Legally, as evidenced by all case law and the Maternity Protection of Employees Act ,1994 this would have been a much better decision.

6:5 The Rebuttal Argument of the Respondent pointing to economic and business needs as a counter weight justifying non-renewal, so to speak, I did not find of sufficient evidential weight to counter act the ECJ and stated legal principles. If this was the economic case being made the Complainant pointed to colleagues who, in similar roles to herself, had their Grade 2 positions extended during the course of her Maternity Leave. The relatively small amount of the differential between Grade 1 and Grade 2 (€41 per shift) could not be described as of major economic consequence.

6:6 The complaint of the Complainant vis a via a male colleague ( Discrimination on Grounds of Gender) who was recruited shortly before her going on maternity leave and was allegedly made permanent during her Maternity leave I could not adequately connect, from the evidence ,to her main case on a gender discrimination ground. I set it aside.

6:7 The issue of Discrimination on Conditions of Employment – largely non access to promotional competitions while on Maternity Leave I could not really find good evidence to support. The issue raised by the Complainant’s Legal representative of the issuing and subsequent withdrawal and reissue of the letter of the 28^th May 2015, (with the deletion of references to applications for position in January 2016,) was certainly not helpful to the Respondent but was in my opinion a minor matter.

In Rebuttal the oral evidence from the Respondent Managers pointed to an organisation that was very Non Discriminatory in all aspects of its business . It would be well know for this. The suggestion of excluding a Pregnant Employee from promotional competitions was an allegation that the evidence did not support.

6:8 The Rebuttal argument of the Respondent, of more serious consequence, was that which pointed, in seeking to resolve the issues at hand, to the noncompliance of the Complainant with the In house Grievance and complaint procedures (agreed collectively with the NUJ).

The Respondent is a major long standing fully organised Trade Union employment with comprehensive staff agreements. The meeting between Ms. AC of the HR Department and the Complainant on the 7th of April 2016 clearly was a good effort on behalf of the Respondent to resolve matters. Ms.AC of the Respondent HR Dept. gave direct oral evidence of this meeting and the efforts made to seek a local resolution. The Complainant stated in oral evidence that she was not close to the Union and maintained that the Union had little interest in matters involving casuals such as herself. She had referred matters to her solicitor instead.

The letter from Ms. AC of HR on the 7th of April 2016 offered to allow access by the Complainant’s solicitor to the procedures. In a fully Unionised organisation such as the Respondent an offer of allowing an employee’s Solicitor access to internal procedures could not have been made lightly by the Respondent HR Department. The resignation by the Complainant, effectively later that day the 7t April 2016, was not indicative of a lengthy consideration of the Respondent’s HR resolution suggestions.

While accepting that Discriminatory Dismissal was not being pleaded I found the effective non participation in local efforts to resolve matters prior to her resignation not helpful to the Complainant’s case.

6:9 The oral evidence from three Respondent Mangers clearly indicated to that the Organisation never had any preconceived negative or Inequality agenda against the Complainant after her return from Maternity Leave. The argument by the Complaint that in the period from her return on the 18th February 2016 to her resignation on the 7th April 2016 she faced inequitable and discriminatory conditions such as to justify her resignation I could not substantiate by any evidence proffered.

7: Redress

I have concluded my investigation and in accordance with s79(6) of the Acts , I find that the Respondent Employer by not extending the Fixed Purpose contract of the Complaint during her Maternity Leave was discriminatory on the grounds of Family Status contrary to the Employment Equality Act, 1998

In awarding redress, I am cognisant of Article 25 of the recast Directive which states penalties must be effective, proportionate and dissuasive. However I am also cognisant of the fact that the complaint resigned voluntarily and did not fully participate in the in House procedures. She also secured alternative employment shortly after leaving the Respondent albeit at a lower salary.

In accordance with s.82 of the Act, I order the Respondent pay the Complainant:

(a) €6,500 (approximately 2 month’s salary or in terms of the Grade 1 to Grade 2 differential approximately one years value ( based on three shifts a week) of the shift differential in compensation for the discrimination and non-renewal of the SP contract.

(b) In setting the award figure at this level I was conscious that the Complainant was not dismissed but resigned voluntarily. The difference between Grade 1 and Grade 2 (as stated in written evidence was € 41 per shift (€275-€234) and by an anomaly of the Maternity Pay system operated by the Respondent she benefited financially to a small degree during the later period of her Maternity Leave when she was returned to a Grade 1 position for the basis of the calculations.

(d) Finally, in accordance with s.82(1)(e) of the Acts I also make the following order: that the Respondent review the provision of the Employment Equality Acts regarding the operating of any SP/Temporary Contract renewals with a particular reference to a pregnancy situation.

Dated: 12^th December 2016

[1]Trailer Care Holdings Ltd v Deborah Healy EDA 128

[2] Julie O Brien v Persian Properties Limited, trading as O Callaghan Hotels DEC-E2012-010

[3] Rottapharm ltd v Beata Nowakowska EDA 159

[4] C-177/88,Dekker v Stichting Vormingcentrum voor Junge Volwassenen[1990] ECR 1-3841

[5] Supra 1

[6] C-109/00{2001} CC-1- 2785

[7] C 438/99 [2001]ECR 1 6910

[8] C-232-09 Danosa v LKB Lizings S/A [2011] CMLR

[9] Recast Directive Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation Official Journal L 204 , 26/7/2006 P. 0023 - 0036