ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00004344

Parties:

Complaint

Date of Adjudication Hearing: 26/04/2017

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

Location of Hearing: Lansdowne House, Dublin 4

Procedure:

In accordance with Section 79 of the Employment Equality Acts, 1998 - 2015, and 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.

Background:

The Complainant was employed on a Fixed-Term Contract of Employment from 23^rd March 2015 until the expiry of the Contract on 22^nd March 2016. The Complainant was paid €1947 gross per week and she worked 37 hours a week. The Complainant had been provided with a Written Statement of her Terms and Conditions of Employment.

The Complainant referred a complaint to the Workplace Relations Commission on 10^th June 2016 alleging discrimination on the basis of her family status – in getting a job and that the most recent date of discrimination was 13^th November 2015.

Preliminary Issue – Time Limits

Section 41(6) of the Workplace Relations Act, 2016 provides “….an Adjudication Officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of six months beginning on the date of the contravention to which the complaint relates”. However Section 41(8) of the Act provides as follows: “An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7), but not later than six months after such expiration, as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.”

The Complainant sought an extension of time and advised as follows – One month after the Complainant’s unsuccessful interview in November 2015, the Complainant was admitted to Hospital at 32 weeks pregnant and she was informed that she would have to remain in Hospital until the baby was born. The baby was born at 33 weeks and some three weeks later the Complainant was released from Hospital. The Complainant was informed on 29^th February 2016 that her Fixed Term Contract of Employment was not being renewed. She contacted the HR Department on 2^nd March 2016 requesting feedback from her initial interview and from her interview in November 2015. She was not provided with this feedback until 9^th May 2016 when she contacted the Citizens Information Bureau and she filed her complaint on 10^th June 2016.

The Respondent did not object to an extension of time.

1. I decide to give an extension of time on the basis of the evidence provided.

Summary of Complainant’s Position.

This complaint was lodged on 10^th June 2016 alleging discrimination on the gender and family status grounds. The Complainant applied for an Executive Officer position for a period of one year on 27^th January 2015 and following a successful interview she commenced employment on 23^rd March 2015 on a one year fixed-term contract of employment. She was assigned to a named Registry which comprises three Departments.

She received an email in mid-October advising that the Registry were seeking expressions of interest for three Executive Officer roles – two were for a three year period and the third was for 5 years. The Complainant declared her interest and she received confirmation of this from a named Director on 23^rd October 2015 and that shortlisting would be finalised by 3^rd November 2015 with interviews to take place on 10^th November 2015. The Complainant emailed the Director on 6^th November 2015 as she had not heard but was aware that other colleagues had been informed. The Complainant was informed on 6^th November 2015 that she had been shortlisted. This was confirmed by email on the same date with her interview scheduled for 10^th November 2015. The Interview took place on 10^th November 2015 and she was informed at a meeting on 13^th November 2015 that she had not been successful and that the three positions had been filled.

The Complainant was admitted to Hospital on 13^th December 2015 at 32 weeks pregnant and she was advised she would have to remain in Hospital. She informed the Respondent who responded that she could not commence her Maternity Leave until the baby was born. This information was incorrect. The baby was born on 19^th December 2015 and she commenced her maternity leave from that date. The baby remained in Hospital until 1^st January 2016.

The Complainant received an email from her Line Manager on 21^st February 2016 that her Fixed-Term Contract would not be renewed when it expired on 22^nd March 2016. The Complainant requested feedback both on her interview of 11^th February 2015 and her interview of 10^th November 2015 as she understood that the three successful candidates appointed to the EO positions had now moved from these positions. One of these was female single, not pregnant as was the second person appointed while the third successful candidate was male and single. There followed an exchange of emails in relation to the Complainant’s request for feedback and these were finally provided to her on 9^th May 2016. These showed that she had had received an overall score of 72 in her first interview in February 2015 but only received 61 in her November 2015 interview. The Complainant stated that both the Interviewers for the 10^th November 2015 Interview worked in an open plan office with her and were aware she was pregnant

The Complainant stated that she had been discriminated on the basis of her Gender and Family status in relation to the Interview of 10^th November 2015 and again on 21^st February 2016 when she was informed that her Fixed-Term Contract would not be renewed.

Summary of Respondent’s Position.

The Complainant was employed from 23^rd March 2015 on a one-year fixed-term contract of employment. The specified purpose of this contract was to support the (named) Programme. In October 20215 three positions of Executive Officer became available – one for 5 years and the other two for three years. The Complainant applied and attended for interview on 10^th November 2015. The Complainant attended a meeting with a named Manager on 13^th November where she was informed that she had been placed eight of nine candidates and was therefore unsuccessful. The Respondent stated that she had been provided with feedback on her interview at this meeting. The Complainant was due to commence Maternity Leave on 21^st January 2016 but due to early delivery she commenced her maternity leave on 19^th December 2015. The Respondent wrote to the Complainant on 15^th December 2015 to inform her that her Maternity leave would be brought forward and that she would be paid her full wages minus Maternity Benefit until the expiry of her contract on 22^nd March 2016.

The Complainant requested feedback on her interviews and following an exchange of emails between the parties this was issued to the Complainant on 9^th May 2016

In the exchange of emails the Respondent referenced the exchange dated 2^nd March 2016 in which the Complainant was informed there were three EO positions now available and the Complainant responded that as she had already interviewed for these positions she did not feel she should have to interview for them again. The Complainant did not apply for these three positions.

The Respondent stated that the Respondent’s Protocols for Recruitment are specified in detail on the HR Recruitment Procedures, provided to the Hearing. These procedures are inextricably linked to compliance with equality legislation and this was set out at the Hearing. Five Competencies were selected to perform the roles and each candidate was tested on these. The Respondent shortlisted nine candidates including the Complainant. All the candidates were interviewed and all candidates were invited to a feedback session to discuss the outcome of their interview. The Complainant was unsuccessful.

The Respondent argued that the Complainant has failed to establish a prima facie case of discrimination in that she has not provided any evidence to demonstrate that she was unsuccessful due to her pregnancy. The Respondent has acted in full compliance with their Recruitment and Selection Procedure and Equality Policy which are linked to the principles of the Employment Equality Legislation.

The Respondent stated they interviewed nine candidates for the three positions, three of whom were successful. All unsuccessful candidates were welcome to apply for other positions which subsequently became available. Of the six unsuccessful candidates four applied for other positions advertised and were appointed, two, including the Complainant, did not and their fixed-term contracts expired. The Respondent referenced a number of Decisions of the Labour Court in relation to their arguments.

The Complainant’s second element of her complaint relates to the non-renewal of the Complainant’s Fixed-term Contract when it expired on 22^nd March 2016 citing discrimination on the basis of gender/family status. The Respondent referenced the Decision of the Court of Justice of the European Union in support of their argument that the non-renewal of a fixed-term contract is not contrary to the Directive and the Equality Legislation. The Respondent also stated that of the two employees who did not apply for other positions which were available, one, the Complainant, was a mother, the other was not pregnant at the time her contract expired.

Findings.

Section 85A(1) of the Act provides as follows: “Where in any proceedings facts are established by or on behalf of a complaint from which it may be presumed that there has been discrimination in relation to him or her, it is for the Respondent to prove the contrary”. The Labour Court has ruled on this issue in a number of cases. In Southern Health Board v Mitchell DEE 1/2001 the Court considered the extent of the evidential burden which a Complainant must discharge before a prima facie case of discrimination can be established. The Court held “The first requirement is that the Claimant must establish facts from which it may be presumed that the principal of equal treatment has not been applied to them. This indicates that a Claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment”.

The facts relied on by the Complainant were – the Complainant applied for three Executive Officer positions that were advised to employees – The Complainant was one of nine candidates shortlisted for interview – the Complainant was unsuccessful in securing one of the three positions – two of the successful candidates were female and not pregnant and the third successful candidate was male – The Complainant was pregnant.

The Complainant failed to provide any evidence in relation to the rest of the unsuccessful candidates who also applied for these positions. The Complainant did not raise any issue in relation to the composition of the Interview Board nor did she raise any issues in relation to any questions asked during the Interview process.

The Labour Court in ADE/12/30 UCD –and- Dr Eleanor O’Higgins held as follows: -

1. It is for the Complainant to prove the primary facts upon which she relies in seeking to raise an inference of discrimination 2. If the Complainant discharges that burden it remains for the Court to decide if those facts are of sufficient significance to raise the inference contended for. 3. It is not necessary to establish that the conclusion of discrimination is the only or the most likely explanation which can be drawn from the proven facts. It is sufficient if it is within the range of presumptions that can be properly drawn from those facts. 4. In cases concerning the filling of a post it is not the role of the Court to substitute its views on the merits of candidates for those of the designated decision makers. Its only role is to ensure that the selection process is not tainted by unlawful discrimination. 5. The Court will not normally look behind a decision in relation to appointments unless there is clear evidence of unfairness in the selection process or manifest irrationality in the result. 6 A lack of transparency in the selection process combined with an absence of any discernible connection between the assessment or qualifications of candidates and the result of the process can give rise to an inference of discrimination. 7 Where a prima facie case of discrimination is made out and where the Respondent fails to show that the discriminatory ground was anything other than a trivial influence in the impugned decision the complaint will be made out. 8 The Court must be alert to the possibility of unconscious or inadvertent discrimination and mere denials of a discriminatory motive, in the absence of independent corroboration, must be approached with caution.

This Decision of the Labour Court was appealed to the High Court who in a Decision delivered on 8^th November 2013 O Higgins- and The Labour Court and University College Cork, which disallowed the appeal.

The Complainant is alleging that she was discriminated against on the basis of her pregnancy.

Protection of Women during Pregnancy. In Line with Decisions of the Court of Justice of the European Union, commencing with their Decision Case C-177/88 Dekker v Stichting Vormingcentrum voor Junge Volwassenen in 1990, the Court 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 grounds of sex. Since this initial decision in Dekker, the protection afforded to pregnant women in employment has been strengthened considerably in the case law of the CJEU and also in recent legislation of the European Union. This principle that discrimination on grounds of pregnancy constitutes direct discrimination on grounds of gender is now specified in the Recast Directive – Directive 2006/54/EC on the Principle of Equal Treatment of Men and Women. This states at Article 2.2(c) that less favourable treatment of a woman related to pregnancy constitutes unlawful discrimination. The protection of Women during pregnancy is also set out in Directive 92/85/EEC – the Pregnancy Directive. One of the more recent decisions of the CJEU in Paquay v Societe d’architectes Hoet and Minne SPRL – Case C-406/06 has held that the prohibition of less favourable treatment, including dismissal, on grounds of pregnancy is protected by both the Equal Treatment Directive and the Pregnancy Directive.

The Burden of Proof rests with the Complainant under Section 85 A of the Act to show and prove facts from which discrimination may be inferred.

Three Executive Officer Posts were advertised in October 2015. One was for a five year fixed-term contract and the other two were for a three year fixed-term contract. The Complainant applied, was interviewed and placed eight out of nine candidates interviewed.

The Respondent set up an Interview Board consisting of a named female and a named male. The Respondent set down five core competencies required to perform the role and utilised these criteria to test all the nine applicants for the three positions. The use of competencies in a selection process is set down clearly in the Respondent’s Equality Policy and also in the Respondent’s Recruitment and Selection Procedure. – Both were provided to the Hearing. The Competencies selected were – Work Experience and Knowledge – IT Skills – Communication and Service Ethos – Organisation and Administration – Motivation and Flexibility. The Complainant was placed eight out of the nine candidates selected for Interview. The Complainant did not raise any issue either with the Respondent or at the Hearing in relation to the composition of the Interview Board or to the five competencies utilised to interview and select the successful candidates.

I find that the Complainant did not provide any facts or evidence to support her contention that she had been unsuccessful in being selected to fill one of the three posts advertised was because she was pregnant.

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The second element of the Complainant’s complaint relates to the fact that her fixed-term contract of employment expired on 22^nd March 2016, while the Complainant was on Maternity Leave and that her Contract was not renewed. The Complainant alleges that she was discriminated against on the basis she was on Maternity Leave.

The Complainant was employed on a one year fixed-term contract of employment from 23^rd March 2015 to terminate on 22^nd March 2016. The specific purpose of this Contract was to support a specified and named Program. The evidence was that the Complainant was due to commence Maternity Leave on 21^st January 2016. However her Maternity Leave commenced on 19^th December 2015. The Complainant was paid her wages, less her Maternity Benefit paid by the Department of Social Protection up to the termination of her fixed-term contract of employment.

The Complainant was advised by email dated 2^nd March 2016 that there were three Executive Officer vacancies advertised. The Complainant responded on the dame date as follows “Thank you for letting me know that there are positions available…. As I have interviewed for these roles already I do not feel I should interview for them again. However I would like some feedback on the previous interview so I can see where I went wrong”. The Complainant did not apply for the advertised positions. Her contract came to an end on 22^nd March 2016.

The Complainant alleges that her contract was not renewed by reason of her gender/family status.

This issue has been addressed by the Court of Justice of the European Union in Case C-438/99 Maria Luisa Jimenez Melgar v Ayuntamiento de Los Barrios where it held as follows – “Whilst the prohibition of dismissal laid down in Article 10 of Directive 92/85 applies to both employment contracts for an indefinite period and fixed-term contracts, non-renewal of such a contract, when it comes to an end as stipulated, cannot be regarded as a dismissal prohibited by that provision. However where non-renewal of a fixed-term contract is motivated by the worker’s state of pregnancy, it constitutes direct discrimination on grounds of sex….”

Again Section 85A places the burden of proof on the Complainant to establish facts from which it can show that discrimination has occurred. The evidence confirmed by both Parties was that on 2^nd March 2016 the Complainant was advised of three Executive Officer Positions but declined to apply relying on the fact that she had recently interviewed for similar positions. The evidence also was that of the employees on fixed-term contracts, two, including the Complainant did not apply for these positions and both their fixed-term contracts of employment terminated on the expiry of their contracts.

I find that the Complainant has not established facts or evidence as required by Section 85A of the Act to show that she was discriminated against by the Respondent.

Decision: CA-00005116-001

Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

On the basis of the evidence, written submissions from both Parties and my findings above I declare the Complaint is not well founded.

Dated:   21/08/2017

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

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