ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000443

Complaint for Resolution:

Date of Adjudication Hearing: 02/09/2016

Workplace Relations Commission Adjudication Officer: Louise Boyle

Procedure:

1. On the 5^th November 2015, the complainant made a complaint to the Workplace Relations Commission pursuant to the Employment Equality Acts. The complaint relates to discrimination on grounds of gender and family status in particular with regard to promotion and conditions of employment. The complainant is a Tourism and Marketing employee and the respondent is a Community Services Enterprise employer. 
2. In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Act, 1998-2015, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Attendance at Hearing:

Complainant’s Submission and Presentation:

2.1 The complainant was unrepresented and expressed that she was happy to proceed unrepresented.

2.2 The complainant wished to amend the complaint form to include gender along with family status on the basis that she omitted to tick the gender box and that the details of her submission on the claim form already submitted related to alleged discrimination on the basis of gender and family status.

2.3 The complainant has been employed with the respondent as Tourism and Marketing Officer since 12/11/2012.

2.4 She was due to return from maternity leave in November 2014 and made contact with her then manager (Ms A) to advise her so. On 19th October she emailed Ms A stating that she would require breastfeeding facilities upon her return to work but her manager failed to respond until 12th November 2014 the day before she returned to work and stated “There is no breast-feeding room…(we) will be unable to provide you with a room in which you may breast-feed and are not obliged to provide paid time off for you to do so”. The day she returned to work, the complainant advised Ms A that she was indeed entitled to paid time off for breastfeeding in the absence of the breastfeeding room and Ms A confirmed that she had been wrong and allowed her the time off.

2.5 The complainant stated that upon her return, passwords that she had been given prior to her maternity leave relating to Facebook page were not given back to her and that email on her computer and documents had been deleted. She stated that she had booked annual leave to commence on 29th November 2014, two weeks after her return from maternity leave and was told that for the duration of two weeks that she was in the office she would be given a list of tasks to complete and her cover for maternity would stay on until the complainant returned from her annual leave in January 2016. Her backfill continued to have access to the Facebook websites that she previously would have had.

2.6 The complaint expressed her dissatisfaction that she was not doing the work that she had been doing before she went on maternity leave and her manager advised that she would follow up those concerns with the Board of Management. The complainant outlined that no handover took place between herself and her maternity leave cover during the two weeks that she was at work.

2.7 On 14th November 2014 the complainant met with a member of the Board (Mr X) outlining her difficulties at work and a further meeting took place on 18th Nov with Mr X and Mr Y the chairperson of the Board.

2.8 On 28th Nov, the day the complainant was due to commence her holidays, the complainant asked Ms A if she was aware that it was her last day before her holidays and that no handover had taken place. Ms A said that she was aware of this and that there would be no handover and in future the complainant needed to speak with either Mr X or Mr Y and she would not be speaking with her anymore.

2.9 On December 19th the complainant sent a form ES.1 to her manager Ms A by registered post outlining her concerns that she was been treated in a discriminatory manner on the basis of her recent pregnancy and subsequent return to work but never received a reply. A post office document furnished at the hearing confirmed that it had been signed for albeit the signature was illegible.

2.10 When the complainant returned to work on Monday 5th January after her annual leave, her maternity backfill had left the company as well as the manager Ms A. The complainant again requested the passwords for Facebook from Mr Z who not a direct employee of the respondent but was the Project Coordinator. The password was not given and she was advised that there were issues with Facebook and that she would receive an explanation in due course. She asked if the issues were with her and did not receive a reply.

2.11 On 27th January a tourism meeting was held and the complainant was not notified and stated that she would have normally attended such meetings.

2.12 On 10th Feb the Ms A’s post was advertised and the complainant was requested to post the position and a closing date of 25th February was given. The complainant applied for the job and on 2nd March asked if there was any update as the closing date had gone by. She was advised that it was going to be posted on the internet and later was advised that it would be extended for a further two weeks with a new closing date of March 11th 2015.

2.13 On 19th March the complainant was sent an email in error from Mr Z which detailed a short list of those who would be called to interview. She replied to his email saying that it was not meant for her. Mr X was at her desk when she alleges that Mr Z stormed in and came over to her computer and said “will you delete that email now please” and pointed to her screen saying “that one”. She claims that when she went to speak he leaned over her hitting the delete button. She explained that with the new IT system it was no longer possible to delete emails and she felt very intimidated by his behaviour. Mr X said nothing during this time and when Mr Z left she said to Mr X that she was upset by what had occurred. She said Mr X’s response was that she should just concentrate on her work.

2.14 On 23rd March 2015 she advised Mr X that she was pregnant and he asked her if it was planned and she said yes and that she was very pleased and he replied that it was great news. She felt that it was inappropriate for him to ask her whether it was planned.

2.15 A few days later she asked Mr X if there was any update on the interview for manager and was advised that it would be decided that evening. A few days later she found out that the deadline had been extended until April 10th 2015.

2.16 On 31st March 2015 she sent an email to Mr X raising a grievance regarding how Mr Z had represented her at a meeting. She cited in the email that she had had a good relationship with him before she went on maternity leave but felt that this had changed. She did not receive a reply to this other than a comment from him stating that “he’d see to it when he returned to the office”.

2.17 Three days later on 20th April the complainant was advised that she was invited for interview and that she needed to confirm if she would be attending so that she would be allocated an interview time. She asked who would be interviewing but was told that telling her that would give her an unfair advantage.

2.18 She attended for interview on 28th April and the day after her first antenatal appointment on 6th May 2015 she received notification that she did not get the manager position. She replied expressing her disappointment and asking for feedback. She requested feedback again on 11th May and saw on 14th May that the position has been posted online again with a closing date of May 22nd.

2.19 On 15th May the complainant requested feedback for a third time and made contact with the organisation who administer funding for the respondent and provides guidelines to the respondent such as Manual of Accounting Procedures and Practices which the complaint felt the respondent was in breach of. She advised that she felt she was being discriminated against for having recently had a baby and that she was now pregnant with her second child. She advised this organisation that she felt that the respondent was in breach of recruitment procedures and wondered if she should put it in writing. She advised that she was told by the funding organisation not to be hasty putting something in writing as it could impact funding for her organisation and she said she would think about it. Later that evening her doctor advised her that she was unfit for work for 3 weeks owing to high blood pressure.

2.20 During this time off she attempted to critique herself with regards to why she did not get the job and felt she may have been weak in the area of finance and found an intensive online course that she intended to commence at her own expense as she felt it covered all the financial requirements and reapplied for the position of manager and outlined that she intended to commence the course in June in the hope that it would illustrate her commitment to the organization.

2.21 She received no acknowledgement of her application despite her emailing Mr X asking about the position and also asking for feedback regarding her previous interview. On 5th June she sent a text to him asking if he had received her email and received a response that she was unsuccessful in reaching the short list. With regards to receiving feedback from her previous interview she received a separate email stating that it had been passed to the board.

2.22 The complainant sent another email to the organisation that administers funding for the respondent again advising amongst other things that she felt that the organisation was in breach of guidelines laid down by this organisation and that she also felt that she was discriminated against. No reply was received and on 18th June the complainant sent a follow up email for which she received a reply acknowledging receipt of it and that they were currently in correspondence with her organization.

2.23 Around mid-June Mr X ceased to be acting manager and a new manager came on board and the complainant advised that she has a good working relationship with her. The complainant cited this manager as a comparator with regards to her family status claim as she claimed that she was discriminated against because she had young children whereas while this new manager had a child, the child was much older (approximately 24 years old).

Respondent’s Submission and Presentation:

3.1 The respondent did not provide a written submission and raised a number of preliminary issues namely:

Preliminary Issue No 1

3.2 The respondent requested an adjournment on the basis that they had only recently engaged with their client to represent them.

Preliminary Issue No 2

3.3 The respondent requested an adjournment on the basis that some documentation which the complainant had claimed to have been submitted to the WRC had not been received by them in time to review it.

Preliminary Issue No 3

3.4 The respondent objected to the request by the complainant to amend her claim form to include the grounds of gender.

Preliminary Issue No 4

3.5 The respondent objected to a number of issues raised by the complainant being heard on the basis that these were statute barred.

Substantive Issue:

3.6 Without prejudice to the above the respondent stated that that complainant had not discharged her onus to establish facts from which an inference of discrimination could be drawn and that there was no prima facie case of discrimination. They stated that the complainant had not raised a comparator and that there were no changes to her terms and conditions of employment when she returned from maternity leave.

3.7 Attending on behalf of the Respondent was Mr. X who is a Board Member and who was the acting manager for the period of time that the manager Ms. A had left until the new manager came on board. Responding to the points raised by the complainant his evidence was as follows:

3.8 He accepted that they had made a mistake with regards to refusing the complainant time off for breastfeeding but said that it was rectified eventually. He confirmed that this was the first time they dealt with a pregnant employee.

3.9 He stated that they had no control over the access to Facebook passwords as it was a decision taken by another organisation that has responsibility for the Facebook pages.

3.10 He could not explain the reason why nobody responded to the complainants various questions regarding her return to work but cited that they are voluntary board who are under resourced.

3.11 The respondent denied receipt of the ES1 form and could not explain whose signature was on the registered letter which the complainant furnished as they said that Ms, A had left the day before the letter was signed for. He questioned if the complainant had by-passed postal regulations in relation to how the letter might have been delivered but had no proof of this claim.

3.12 Mr. X outlined that while the complainant may have attended certain meetings before, such as a tourism meeting, it was no longer deemed necessary for her to do that in the interest of ensuring resources are managed appropriately.

3.13 He confirmed that he had been present when the incident occurred with Mr. Z on 19th March when Mr Z had approached the complainant and attempted to delete the email that was inadvertently sent to her, however, he said that the alleged reaction of the complainant had been exaggerated.

3.14 He could not recall if he asked the complainant if her pregnancy was planned when she announced that she was pregnant but stated that she knew what she was doing when she announced she was pregnant. When asked to explain this statement he questioned as to who would announce they are pregnant when they are only in early stages of pregnancy and when asked to explain this further he stated that her announcement was made to “stir” him up and that he had experience of miscarriages.

3.15 Mr X advised that the HR advice that they got at the time that the complainant requested feedback from her interview was they were not required by law to provide it. When asked did anybody communicate this to the complainant, he repeated that they were not obliged to do so. A scoring sheet in relation to her interview was provided which showed the scoring that she got under each category but the respondent was unable to provide an explanation as to what each category meant as he stated that he was not on the interview panel. The complainant scored a mark of 1 out of a possible 5 marks for finance, indicating “inadequate” knowledge and a score of 25 out of a possible 40. None of the 3 candidates who went for interview at that time were successful.

3.16 He outlined that she had previously been deemed unsuitable for the role and therefore she was not shortlisted a second time.

Issues for Decision:

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

4.2 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.

Preliminary Issue No 1 – Request for an Adjournment

4.3 I am satisfied, having reviewed the documentation, that the same request for an adjournment on the basis that the representative had only recently been engaged had already been submitted to the Workplace Relation, was appropriately reviewed and refused by the Workplace Relations Commission on 1st September. The request for adjournment is, therefore, denied.

Preliminary Issue No 2 – Request for an Adjournment

4.4 The respondent then requested an adjournment on the basis that some documentation which the complainant claimed to have been submitted to the WRC by email had not been received by the respondent. While the respondent themselves did not provide a written submission I provided the respondent with a brief adjournment to allow them time to review the documentation. Having confirmed that they had an opportunity to review the documentation the case then proceeded.

Preliminary Issue No 3 - Amendment of claim form

4.5 The complainant wished to include discrimination on the basis of gender as a specific complaint on her complaint form on the day. The respondent objected to same. Having reviewed the claim form in its entirety, including the “specific details or statement” detailed by the complainant on her complaint form, they provide details of allegations of inter alia discriminatory treatment on the basis of gender namely her being pregnant and subsequently becoming pregnant again. I must decide whether or not these allegations outlined in the complainant’s submissions and at the hearing fall within the scope of the original complaint and can be considered as part of the claim.

4.6 The decision in County Louth VEC v The Equality Tribunal and Pearse Brannigan, Unreported, High Court, McGovern J. (24th July 2009), provides a clear authority to allow me to investigate additional acts once the nature of the claim is the same.

4.7 In Brannigan McGovern, J said in relation to the completion of a form EEI:

“I accept the submission on behalf of the respondent that the form EE1 was only intended to set out, in broad outline, the nature of the complaint. If it is permissible in court proceedings to amend pleadings where the justice of the case requires it, then a fortiori, it should be permissible to amend a claim as set out in a form such as the EE1, so long as the general nature of the complaint (in this case, discrimination on the grounds of sexual orientation) remains the same.”

4.8 A similar approach was adopted by Hedigan J in Clare County Council v The Director of Equality Investigations [2011] IEHC 303. These authorities indicate that statutory bodies should not apply a more stringent approach to the amendment of originating forms than is applied by the ordinary courts to the amendment of pleadings.

4.9 I am satisfied, that incidents contained in the claim form relate to allegations of discrimination on the grounds of gender and I am thus satisfied that I have jurisdiction to investigate matters referred therein.

Preliminary Issue No 4 – Claims are Statute Barred

4.10 The complaint form referenced incidents relating to when the complainant returned to work on 13th November 2014 following a period of maternity leave. The most recent date of discrimination as indicated on the form was 5th June 2015 which was the date the complainant received notification that she was not shortlisted for the manager role. The claim form was submitted on 5th November 2015. The complainant did not offer any reason as to why she had not submitted the claim form earlier.

4.11 Section 77(5) of the Employment Equality Act requires that a claim for redress in respect of discrimination be referred within six months from the date of the most recent occurrence. This limitation period may be extended to 12 months where reasonable cause is shown. It can be possible for a complainant to bring into their complaint more historic incidents of discrimination where they can establish that they are part of a wider discriminatory regime or where there is sufficient connection between the incidents or acts. The complainant must, however, establish that a discriminatory act occurred within the limitation period (see the decisions of the Labour Court in Cork County VEC v. Hurley EDA 24/2011 and County Dublin VEC v. Dodo EDA1327/2013, there, it is this limitation period of 6 months from the date of the most recent occurrence that will be examined in the first instance.

4.12 Section 85A of the Employment Equality Act sets out the burden of proof that applies to complaints of discrimination. In the first instance, it requires the complainant to establish facts upon which they can rely in asserting that they were 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. Addressing the issue of the burden of proof in EDA0917 [2010] 21 E.L.R, Valpeters v Melbury Developments Ltd, the Labour Court, whilst examining the circumstances in which the probative burden of proof operates, held as follows:-

"Section 85A of the Acts provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”

4.13 In Graham Anthony and Co Ltd v Mary Margretts, EDA 038, in an age discrimination case, the Labour Court remarked:

“The mere fact that the complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination occurred”

The most recent date of discrimination occurred on 5th June 2015. This was the date that the complainant received notification that she was not shortlisted for interview for the role of manager. The complaint states in her submission that she reviewed her cv and considered her interview in an attempt to critique herself. She thought that the area where she was less strong in was finance and sought to do an online course which was a “certificate in small business accounting”.

4.14 While the complainant is to be applauded for taking on this initiative for her development and whether the respondent should have given more favourable consideration to her intention to become knowledgeable in this area, I cannot ignore that by her own admission she accepted that she did not already have the knowledge that would “cover all the financial requirements outlined in the job specification”. Therefore, it was for reasons other than discrimination on the basis of gender and /or family grounds by her own admission that she was not shortlisted and while the complainant falls within two of the discriminatory grounds laid down under the Act her assertions, under the gender ground and family status ground, do not meet the level required to raise a presumption of discrimination within the limitation period and upon which an inference of discrimination can be drawn.

4.15 I find, therefore, that she is unable to establish a prima facie case of discrimination on the grounds of gender and family status.

5. Findings

5.1 On the basis of the above, I conclude that the complainant was not discriminated against on the grounds of gender or family status in relation to promotion and conditions of employment.

5.2 The other issues raised by the complainant fall outside the limitation period provided in section 77(5) of the Employment Equality Act. Given that I have found that no discriminatory act occurred within the limitation period, it is not permissible for me to examine the older complaints as they are made out of time. However, I would strongly recommend, particularly, in light of some of the comments made by the respondent at the hearing, that they undergo equality training and review all of their HR policies and procedures particularly with regard to dealing with pregnant employees as well as recruitment and selection etc. an as a matter of urgency, if it has not already done so.

6 Decision:

CA-00000664-001

6.1 I have investigated the above complainant and make the following decision in accordance with section 79 of the Employment Equality Act that:

the complainant has failed to establish a prima facie case of discrimination on the gender and, family status grounds, and I dismiss the complaint.

Dated: 3rd November 2016