ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001298

Complaint for Resolution:

Date of Adjudication Hearing: 05/05/2016

Workplace Relations Commission Adjudication Officer: Pat Brady

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and/or Section 8(1B) of the Unfair Dismissals Act, 1977, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints

Complainant’s Submission and Presentation:

The complainant had been the General Manager of the hotel for some four years and went on maternity leave in January 2015. Her baby was born in March 2015 and with a view to returning to work she emailed a colleague on November 14^th 2015 regarding a proposed informal visit to the hotel to meet that colleague and the HR Manager.

She was due to return from maternity leave in January 2016.

In due course she met the HR Manager on December 4^th 2015 for what she had anticipated as an informal, pre-‘return to work’ chat.

However, she learned at the meeting that in her absence a new management role had been created, more senior to her and to which she would be reporting. Prior to her departure on maternity leave she had been General Manager in the hotel after the takeover by the new owner and had been assured that her role and reporting relationships would not change.

While she had reported to the Deputy CEO of the wider hotel group, he was the manager of a sister hotel and did not have an active management role in the business and she had been the effective general manager of the hotel. There was no-one within the hotel to whom she reported on a day to day basis.

She sought a meeting with the Managing Director, especially on how the new arrangement was intended to work in practice, with what she saw as two general managers.

She followed up the meeting with the HR Manager on December 4^th with an email also seeking clarification on the delineation between the two roles. She got no reply and wrote again on December 23^rd.

She then got a reply which included a ‘revised’ job description and an organisation chart.

A further meeting took place on January 8^th 2016 between the complainant and the HR manager in advance of which the complainant emailed her concerns. These included the fact that she was not consulted about the proposed changes. She felt that if there had been consultation that this might have avoided the current difficulties. She also raised the fact that she would no longer be responsible for her own rostering, and pointed out that she had effectively been demoted, among other things.

The complainant returned to work on January 11^th 2016 but no proper provision had been made for her return; there was no handover file, her laptop and email account were not accessible, and there was no office or workstation ready for her.

Further, her proposed roster was unsuitable from both an operations and a family point of view.

She met the new ‘Senior’ General Manager, i.e. the new appointee but this failed to resolve the issues.

She wrote again on January 12^th outlining her concerns describing the situation as ‘untenable’ even following the meeting with the ‘senior’ general manager. But, upset by the events of the previous day she consulted her doctor who placed her on sick leave.

The HR Manager replied with an expression of sympathy saying the issues could be addressed on her return to good health and work.

However, she did not return to work and tendered her resignation on April 4^th 2016 citing her ‘demotion since returning from maternity leave’ and the company’s failure to find a solution to the problem.

The complainant’s first complaint is that she was not permitted to return to the position she left to go on maternity leave contrary to the provisions of sections 30 and 31 of the Maternity Protection Act 1994. There should have been a consultation process on the changes before they were implemented.

She had asked for a job description for the new post of Senior General Manager and this was refused.

The complainant says that the respondent did not appear to really know what the complainant’s detailed role had been before her leave. She did not expect that nothing would change during her absence on maternity leave but the scale of these changes had significant implications for her.

She says the early submission of the case to the WRC was to facilitate discussion. She had given substantial notice of her intention to return to work and the respondent had the opportunity to clarify matters. She did not use the Grievance machinery because of the erosion of her terms of employment

Regarding her claim under the Employment Equality Acts this is based on two issues; the denial to her of an opportunity to compete for the newly created position of Senior General Manager and the change to her roster which was not family friendly.

The position of Senior General Manager given to a male the complainant says that this represents discrimination on the gender and family status grounds.

Respondent’s Submission and Presentation:

The respondent said that in the absence of the complainant very major changes were taking place in the hotel. The hotel was being upgraded from a three, to a four star rating, with a very considerable expansion in its services and employee numbers; in the latter case a doubling.

Turnover projections were also for a significant increase.

These changes took place when the complainant was on maternity leave but they were independently driven by the need to develop the business following its acquisition by a new and ambitious owner.

The respondent says that the complainant’s salary and responsibilities would have remained the same.

The issues that arose on the day of her return to work were unfortunate ‘glitches’, in the case of the email and laptop, a purely technical problem which was soon resolved. The intention was to bring her fully into the new operation and up to date as quickly as possible.

The respondent submitted that significant management changes were required by the scale of the proposed expansion of the business.

The complainant was offered her job back with the same level of responsibility as she left. Her primary complaint centred on the proposed new roster and the changes could have been worked through. But the complainant had referred the complaint to the WRC even before she had returned to work and had the various meetings on her return.

The company has a full Grievance and Disciplinary policy in place.

The HR Manager gave evidence that it was never intended that the complainant’s actual role and the conduct of her duties would change.

Conclusions and Findings

I have considered all the relevant evidence, oral and written that was laid before me before and in the course of the hearing.

The complaint under the Employment Equality Act relates firstly to the exclusion of the complainant from the opportunity to compete for the newly created position as ‘Senior General Manager’ position and secondly to the various incidents arising from her return to work such as what she saw as a discriminatory roster, and the various inadequacies in her working arrangements.

In fact, the new Senior General Manager appears to have been ‘headhunted’ and the position was not the subject of a competitive process.

The respondent says it made its decision on the basis of the intended appointee’s known track recording of managing a hotel at a higher level than the complainant. While he is male the decision, and the decision about the process seem to have been made on the basis of the needs of the business, rather than on any discriminatory basis. He had previous experience of managing a four star hotel (to which standard the respondent was upgrading) and had a different skill set to the complainant.

There is no obligation on a private business to conduct a public competition, although the interests of transparency and even effective recruitment may be better served by so doing. However I see no prima facie act of discrimination here.

Regarding the roster, this had barely crystallised into an issue and the respondent complains that it was given insufficient opportunity to address this before the complainant went on sick leave. I accept this.

Of course the appointment, specifically its outcome and its implications for the complainant is at the root of the problem which arises under the Maternity Act.

Section 26 of the Act provides that on expiry of maternity leave the worker is entitled to resume her employment. The entitlement refers to a resumption of employment:

-          in the job which the employee held immediately before the start of that period

-          with the employer with whom she was working immediately before the start of that period

-          under the same contract of employment (under terms or conditions not less favourable than those that would have been applicable to the employee if she had not been so absent from work) and incorporating any improvements the worker would have been entitled to had the worker not taken the leave.

Section 27 provides that where it is not reasonably practicable for the worker to return to the same job, the worker may be offered suitable alternative work under a new contract of employment. The crucial phrase here is “suitable alternative work” which will be a matter of whether:

(a)    the work required to be done under the contract is of a kind which is suitable in relation to the employee concerned and appropriate for the employee to do in the circumstances; and

(b)   the terms or conditions of the contract

                                                               i.      relating to the place where the work under it is required to be done, the capacity in which the employee concerned is to be employed and any other terms or conditions of employment are not less favourable to the employee than those of her or his contract of employment immediately before the start of the period of absence from work while on protective leave.

(emphasis added.)

                                                             ii.      incorporate any improvement to the terms and conditions of employment to which the employee would have been entitled if she or he had not been so absent from work during that period.^[1]

Thus the Act requires the employer to make provision for suitable alternative work.

In Tighe v Travenol Laboratories (Ireland) Ltd P 14/1986 the Employment Appeals Tribunal considered the words "suitable in relation to the employee concerned" and determined that they should be construed in the same way as the Tribunal has construed similar words in section 15(2)(c) of the Redundancy Payments Act 1967. The words should be interpreted.

‘… subjectively from the employee's standpoint, including the general nature of the work which suited her and her domestic considerations.’

The text of paragraph B I above to which emphasis has been added provides the decisive criterion for assessing the complainant’s case as to whether this represented ‘suitable alternative work’.

Can it truly be said that the complainant was returning to the same capacity in which she had been employed or that her other terms or conditions of employment were not less favourable to her than those of her contract of employment immediately before the start of the period of absence from work on protective leave.

Looking at the first of these it was not in dispute that she was the de facto manager on a day to day basis of the hotel prior to her departure on maternity leave. She did report to another manager but this seems to have been as much for information and mentoring purposes as anything else. He could not have been described as her ‘line’ manager as was going to be the case on her return with the appointment of the senior General Manager.

The complainant says that prior to her departure on maternity leave she had sought and had been given assurances that, on her return, her reporting relationship would be the same.

The complainant placed great emphasis on the rostering issue for two reasons. First of all she had rostered herself prior to her leave. On her return she was told what her roster would be and was rostered in a fashion which she says made no operational sense and was unsuitable for her family responsibilities. The respondent says these issues could have been resolved and it was critical of the complainant’s refusal to engage with the company after her return.

Terms and conditions of employment are not confined to salary, job content or working hours issues. Status and level of responsibility are also important and the complainant saw what had happened, not unreasonably as a downgrading of her position. She described it in evidence as a ‘demotion’.

The respondent submitted that the complainant’s ‘job’ remained the same in respect of her role and the content of her work.

In Power v Jahan Company t/a Irema Ireland Ltd EDA 1326 (which primarily turned on the question of whether proceedings could be pursued on the same facts under different legislation, and which point is not relevant here) the Equality Tribunal Decision (DEC-E2013-055) had addressed the issue as to what ‘equivalent post’ meant.

The Equality Officer said.

‘Whilst a woman is entitled to return to work after maternity leave she is not entitled to insist that she returns to the exact same duties she was carrying out before she went on maternity leave. However the job must be an ‘equivalent post’ which means, in looking at the wording in the Maternity Protection Acts, that the job should be consistent with the nature of the work she was contracted and did carry pout before going on maternity leave’

It may be necessary to distinguish between the nature of the duties carried out (which in this case I accept may have been very similar) and the concept of an ‘equivalent post’.

It is clear that the role to which the complainant returned in this case was a diminished one, even if the duties, or many of them were similar.

In Campbell v Bank of Ireland Private Banking a Manager DEC-E2013-046 returned from her maternity leave just after the banking crisis in 2008. In her new role she was no longer identified as a ‘manager’ and her level of responsibility had been diluted and her new positon was seen as a demotion and she succeeded in her complaint.

One cannot ignore the background of the very significant changes which were undertaken in the complainant’s absence. In that regard the respondent was in something of a difficulty insofar as there would have been difficulties about consulting the complainant in the course of her leave about the proposed changes and in any event it did not do so.

The fact that her return to work was so clumsily managed undoubtedly made things worse and does not appear like the actions of an employer seeking to assure the complainant about her future in the business.

It did not require very great insight to anticipate that the complainant would be, to put it mildly, somewhat ‘put out’ by the changes made in her absence. Rather than provide her with a reassuring, soft landing type of return the respondent managed to make things a good deal worse for the want of a little foresight and planning.

Its impact in the complainant was fairly predictable. In particular even the respondent seems to recognise the roster change as a significant ‘last straw’.

While her later actions might have been different, in respect of the issues to be decided here the clock stops ticking at the point of the complainant’s return and the immediate aftermath. I find that the change represented an unacceptable diminution of her role during a period of protected leave. Had she not been on leave the transition might have been the subject of negotiation and agreement. But she was on protected leave and that speculation is quite irrelevant.

I conclude that the terms on which she returned to work were a significant change and diminution of her position prior to her departure on protected leave. A position may be changed in terms of its job content in minor respects but the responsibilities, reporting structure and other key criteria must remain at the level they were previously. In this case they were insufficiently so.

I do not find that a case of discrimination has been made out under the Employment Equality Act on either of the grounds submitted.

The complaint under the Terms of Employment Information Act was withdrawn at the hearing.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complains in accordance with the relevant redress provisions under Schedule 6 of that Act.

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.

I dismiss the complaint under the Employment Equality Acts.

I award her €12,000 for the breach of her rights under Section 30 and 31 of the Maternity Protection Act 1994. This is compensation for the breach of rights under the Act and is not taxable.

Dated: 26^th July 2016