MPD162

Background

2. The complainant commenced working for the respondent in 1992. She was initially employed as Domestic. Subsequently she was promoted to a grade 111 clerical position within the service. Her duties developed over time and she was eventually employed in the payroll department and developed quite an expertise in that area. Her manager formed the view that she was in fact working at a grade iv level and undertook to have her position regraded as soon as an embargo on promotions then in force was lifted.

3. The complainant went on maternity leave on March 6^th2014. She was due to return to work 26 January 2016. While she was on maternity leave the work she had been performing was transferred to another location within the HSE. The reason for the transfer was twofold. Firstly the work the claimant performed could not be left undone and consequently had to be reassigned during the period of her maternity leave. Secondly the HSE was engaged in a constant process of restructuring and reallocation of work at that time arising out of the pressure on budgets and the embargo on staff recruitment, replacement and upgrading.

4. When the complainant was due to return to work she wrote to the HSE making enquiries regarding the work to which she would return. She was anxious to have an identified set of duties. She was also anxious to ensure that she was allocated work that was substantively grade iv work in order to protect the commitment she had been made by her manager regarding regrading.

5. Her line supervisor corresponded with her and on her return to work met with her to develop an appropriate set of duties. She was initially assigned to clear a backlog of work that had accumulated while she had been on maternity leave. She had no issue with that work but was concerned that it would be completed within a period of six to seven weeks. Accordingly she sought details of what work she would be assigned when the backlog was cleared.

6. Several meetings took place but no firm proposals emerged. The lack of clarity began to affect her and she eventually found it necessary to take time off from work as she could not cope with the uncertainty any longer.

7. Finally she commenced the instant proceedings.

Complainant’s Case

8. The Complainant submits that when she returned to work after her maternity leave she was not restored to her old job nor was she was allocated comparable alternative work. She submits that she made reasonable efforts to engage with her employer to identify such duties but that she was met with delay and obfuscation that eventually had the effect of forcing her out of work as she could not cope with the uncertainty surrounding her duties and employment.

Respondent’s Case

9. The respondent submits that the complainant returned to work under the same contract and with the same terms and conditions of employment that she enjoyed before she commenced maternity leave. It submits that it went to considerable lengths to identify and agree with her alternative suitable work but that she failed to submit a definitive list of duties she was prepared to undertake and that she was satisfied would protect her entitlement to be upgraded to grade iv when the embargo was lifted. It submits that it discharged its obligations under the Act.

The Law

26.—(1) Subject to this Part, on the expiry of a period during which an employee was absent from work while on protective leave, the employee shall be entitled to return to work—

• (a)with the employer with whom she or he was working immediately before the start of that period or, where during the employee’s absence from work there was a change of ownership of the undertaking in which she or he was employed immediately before her or his absence, with the owner (in this Act referred to as “the successor”) of the undertaking at the expiry of the period of absence,
  (b)in the job which the employee held immediately before the start of that period, and
  (c)under the contract of employment under which the employee was employed immediately before the start of that period, or, where a change of ownership such as is referred to in paragraph (a) has occurred, under a contract of employment with the successor which is identical to the contract under which the employee was employed immediately before the start of that period,and (in either case) under terms or conditions —
  • 
    (i)not less favourable than those that would have been applicable to the employee, and
    • i.(ii) that incorporate any improvement to the terms or conditions of employment to which the employee would have been entitled,if she or he had not been so absent from work.
    • ii.(2) For the purposes of subsection (1) (b), where the job held by an employee immediately before the start of the period of her or his absence on protective leave was not the employee’s normal or usual job, the employee shall be entitled to return to work, either in her or his normal or usual job or in that job as soon as is practicable without contravention by the employee or the employer of any provision of a statute or instrument made under statute.
    • iii.(3) In this section “job”, in relation to an employee, means the nature of the work which she or he is employed to do in accordance with her or his contract of employment and the capacity and place in which she or he is so employed.

11. In this case the Court finds that while there was a willingness on the part of the respondent to accommodate the complainant it nevertheless, unintentionally, failed to assign her work of the nature of that which she carried out before she went on maternity leave. As a consequence she did not know what duties she was required to undertake and was left in an effective limbo.

12. That failure to assign her appropriate duties amounted over time to a failure on the respondent’s parts to meet its obligations to the claimant under section 26 of the Act.

14. Noting the unintentional nature of the infringement and the efforts the complainant’s manager made to try to accommodate her the Court considers that compensation for the infringement should be set at €5,000. In addition the Court orders the respondent to identify and assign the complainant an appropriate grade iv post in the capacity and place in which she was employed before she commenced her maternity leave. The Court so determines.