ADJ-00003762

ADJUDICATION OFFICER DECISION/RECOMMENDATION 

Adjudication Reference: ADJ-00003762

Parties: 

Complaint(s):

Date of Adjudication Hearing: 08/12/2016

Workplace Relations Commission Adjudication Officer: Penelope McGrath

Procedure: 

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and following the presentation by an employee of a complaint of a contravention by an employer of a Provision or Act contained in Schedule 5 of the Workplace Relations Act of 2015, made to the Director General and following a referral by the said Director General of this matter to the Adjudication services, I can confirm that I have fulfilled my obligation to make all relevant inquiries into the dispute. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered in the course of the hearing.

The Complainant herein has referred a dispute that she says she has in relation to her entitlements under the Maternity Protection Acts 1994 -2004. This referral has been made within six months of the initial circumstances of the relevant dispute.

Additionally, and in accordance with the Employment Equality Acts as amended by the Workplace Relations Act of 2015 I have made pertinent inquiries into the complaints of discrimination made by the Complainant herein

Background: 

The complaints are made by way of Workplace Relations Complaint Form dated the 28^th of June 2016 and the complaints include:

1. An allegation under the Employment Equality Acts that the Complainant is being discriminated against on the grounds of gender and/or family status and in particular arising out of a workplace employment agreement being implemented in the workplace.

2. An allegation under the Maternity Protection Acts Section 26 (1) that the Complainant has returned to the workplace post-maternity leave to conditions less favourable than those that would have been applicable had she not been so absent from work.

3. An additional complaint was lodged pre-hearing on or about the 15^th of November 2016 wherein the Complainant claims she was additionally discriminated against on grounds of gender and/or family status when she was not promoted or considered for promotion in the aftermath of an in-house job interview for a position of Research Administrator.

The Complainant has been an Employee of the Respondent Institution since in and around 2006. By March of 2007 the Complainant had been given a permanent position. Between that year and April of 2015 the Complainant had worked her job in both a full time and job sharing capacity. An element of home based work was introduced in 2014 and this increased to two days of home based work in June of 2014 when the Complainant went back to full time work after a period of part time. The Complainant worked in this way for eleven months to April 2015 when the Complainant went out on sick leave (immediately followed by her Statutory Maternity leave). The Complainant was therefore out of the workplace for a period of about thirteen months.

It is not clear from the evidence what emphasis was placed by either party on the level of formality which should be attributed to the fact that the Complainant was being allowed to perform some of her functions from her own home. Nor is it clear whether or not it was understood that the arrangement was always subject to review in line with the Employer’s changing needs.

In the course of that period of time wherein the Complainant was absent, the workplace reviewed and sought to formalise it’s “working at home” policy (introduced towards the end of 2015).

Of relevance to the Complainant is the introduction of a workplace allowance of home based work of one day a week. This would have the effect of reducing the Complainant’s pre-Maternity working from home allowance by half. The policy additionally contained the proviso that the arrangement is subject to review and does not form part of any Contract of Employment. It is noted that the policy also affirms a recognition that it is beneficial and flexible to allow for staff work both on a standing basis and as part of some special assignment.

The Complainant was notified of the new policy by Ms. BS at the beginning of April 2016 and within a few days of the Complainant having engaged with the workplace for the purpose of notifying her Employer of her intended date for her return to the workplace. BS indicates a willingness to hear from the Complainant in respect of this matter should the need arise.

The Complainant returns to the workplace some five weeks later on the 23^rd of May 2016. The Complainant operated to her pre-departure timetable though attended a hand over meeting on the 24^th of May. The Complainant worked from home on the 23^rd day of May 2016.

The policy document had not been signed by the Complainant on her return and the issue is addressed at a meeting held on the 1^st of June with the Complainant and members of her management team.

By way of an easing into the new arrangement, the Employer puts together a bespoke agreement which allows the Complainant to continue working from home for the two days she had previously enjoyed for a full year. Thereafter the standard workplace policy will apply. It is noted that the said agreement also allows for the cessation of the two day allowance should the “operational needs” of the Institute require it.

The Complainant is still not satisfied to sign this document or the policy document. The Complainant is advised that the offer will be withdrawn and the ordinary policy will apply if she does not wish to take up the offer. The Complainant went out on sick leave on the 20^th of June and by the end of June 2016 had brought her claim to the WRC

Summary of Complainant’s Case: 

The Complainant gave evidence in the course of the hearing and her evidence was tested robustly by the Respondent. The Complainant was very clear that she believed that the Respondent’s ability to revoke with limited notice was unacceptable as it gave her no comfort either in the one year bespoke agreement and even in the application of the policy itself over the following years. An issue of trust had arisen for the Complainant, though it was not clear why this was so. The evidence tended to suggest that that the employment relationship between the parties had been very good in the preceding years and that a great deal of flexibility had operated as the Complainant moved in and out of different hour and pay structures both to accommodate herself and accommodate her employer. The Complainant said she had been always happy to accommodate her Employer should the need require her full weekly attendance on an exceptional basis.

The Complainant made the case that in circumstances where working from home had been a feature of her working structure for so long there was an implied agreement between the parties that this was now to be seen as a formal part of her Contract into the future.

On her return to work on May 23^rd the Complainant had been working from home on her first day back and when her whereabouts was questioned she had indicated that it was her entitlement to return to work under the same terms and conditions she had left before the maternity leave.

The Complainant stated that one of the difficulties for her was the distances she had to travel to get to work – a 200k round trip.

The Complainant gave an account of the meeting of the 1^st of June wherein she was being put under pressure to sign up to the bespoke agreement and where she did not get an adequate rational for the change in policy or what exactly was meant by the “operational needs ” which appeared to her to be vague. The Complainant says that she was being told that she had had too much benefit or favourable treatment up to this time and that other Employees were looking for similar treatment. The Complainant says she was only given sight of the alternative personalised agreement a short time before the meeting. She was accompanied at the meeting. In the aftermath of the meeting the Complainant indicated that she was not happy to sign up to what was on offer at which point GS told her she should come back for a full five day working week in the place of work, at the expiration of a further eight weeks.

The Complainant was asked about her request for parental leave which she had sought in advance of returning from her maternity leave.

The Complainant agreed that she did not invoke a grievance process at this time nor did she invoke any other process of mediation and or discussion. The Complainant did not talk to a Union rep though it is not clear whether that option was open to her.

By the 10^th of June the Complainant had stated that she was not willing to sign up to the agreement as it proposed to vary the terms of her employment, albeit in a years time.

It is worth noting that the Complainant did state during her evidence that she did not expect that she would necessarily be allowed to stay working from home until she reached the age of 65.

The Complainant’s claim also related to the fact that she applied for but did not get promoted to the position of Research assistant although she did interview for this. This complaint was brought a little later than the original workplace relations complaint form.

Summary of Respondent’s Case: 

A number of witnesses gave evidence on behalf of the Respondent and they were fully challenged. BS indicated that she too had availed of the working from home option and had signed up to the policy once it had been introduced into the workplace. She had been at the meeting on the 1^st of June and was aware of the Complainant’s discomfort with the idea that the privilege could be withdrawn at four weeks of notice though in practise this has never happened. Ms. B had opted to only send the policy to the Complainant when the Complainant herself had contacted the workplace. To do otherwise would be invasive of the Maternity Leave, which has to be respected. BS said she would not recognise the entitlement to work at home as having some sort of Contractual Guarantee status. Mr. S and Mr. O gave similar evidence. The Respondent is relying on the actual Contract of Employment which was operative during the course of this employment. The Contract is silent on the issue of working from home but does allow for the movement of the place of employment with due notice and consultation as the provision of services might require.

The workplace has always allowed for people to work at home but the applications to do this had becoming too numerous and too varied to ignore the fact that there was a need for cohesion and fairness to apply across the board. It was in these circumstances that the policy came to be drafted. There was nothing calculated in the fact that this matter came to a head to be dealt with while the Complainant was on Maternity Leave. The Employer was aware that the Complainant was the employee most likely to be effected by this change in policy and it was in these circumstances that a personalised, stand-alone, one year agreement was created to allow the Complainant time to make plans for the inevitable change. BS denied that the meeting held on the 1^st of June was pressurised in the manner described by the Complainant. The Complainant was invited to go away and think about it and this is borne out by the fact that she only came back to them on the 10^th of June – albeit with a refusal. 

Findings and Conclusions: 

I have taken the time to consider the issues which have been raised in the course of this hearing and have additionally carefully read the submissions made and the case law to which I have been directed by the parties.

Pursuant to Section 30 and 31 of the Maternity Protection Act of 1994 The Complainant has requested an adjudication in relation to what she says is a breach of and/or a contravention of her rights as prescribed in Section 26(1) of the Act of 1994. Section 26 in effect directs that at the end of a protective leave the employee is entitled to return to the workplace with the employer under the same Contract of employment and under the same terms and conditions being no less favourable than those that would have been applicable to the employee if she had not been so absent from work.

The Complainant says the attempt to reduce her home based working week from two days to one was a material change in her terms and conditions such that gave rise to the breach under section 26.

Having considered the evidence I find I cannot agree with the Complainant’s position. There was no Contractual obligation on the Employer to guarantee a particular portion of the working week to be worked from home. This was not even an implied right. It would be unfair in the circumstances presented to impose such a right (in favour of the employee) on this employer. Whilst this employer has allowed the practise to develop, this seems to have developed on the basis of it being to the mutual satisfaction of both employer and employee. The Complainant had only worked the two day week at home for a period of eleven months prior to her maternity leave.

I cannot accept that the introduction of the policy at the end of 2015 was anything other than a reasonable approach by an employer that had come to realise that the various demands to work from home needed some cohesion and formality so as to apply fairly across the entire workforce. This policy needed to be applied and the timing of its application was incidental to the fact that the Complainant was out on maternity leave.

In fact, I would say that the employer went above and beyond its obligations by offering to the Complainant herein a twelve month lead in arrangement whereby she could continue for a full year on her two day home based work before eventually conforming to the policy arrangements which were being imposed on all of her colleagues since 2015.

The Complainant has also brought a claim of Discrimination. Section 6 of the Employment Equality Act 1998 expressly precludes and employer from treating an employee any less favourably than another (comparator) on specific discriminatory grounds. In the specifics of this case the complainant says she is being discriminated against on the grounds that the complainant is a woman (gender 6.2.a) and on the grounds that the complainant is a mother (family status 6.2.c).

In the first instance, there is an obligation on the Complainant to establish a set of facts from which it may be positively inferred that she has suffered a discriminatory treatment. It is only when the complainant has established those facts to the satisfaction of the Adjudication Officer such that it triggers a presumption of discrimination so that the burden of proof will shift to the respondent employer to rebut the positive inference of discrimination which has now been raised.

It is well established law that the Complainant cannot succeed if she does not discharge this initial evidential burden – presenting a prima facie case to be answered.

Taking the evidence that I have heard into consideration, I find I cannot accept that the Complainant has established that the introduction of the working from home policy into this workplace has operated to discriminate against the Complainant as against her co-employees in the manner in which she has urged on me. This policy is a fair and reasonable policy which seeks to give a consistent and equal implementation of the working from home privilege to all employees in an open and transparent way. There is no historic entitlement to this privilege. It is certainly not provided for in the Contract of Employment. The reality is that the Complainant was fortunate to have had a greater privilege than most by reason of timing and circumstance. The Complainant knew she might not be allowed work from home up to the age of sixty five and this admission is telling in terms of her understanding that this was a privilege of which she happened to have more benefit than most. The employer was always entitled to regularise this workplace allowance and the fact that the Complainant happened to be out on maternity leave for the introduction of the policy is just a regrettable fact of timing.

In fact the employer’s concession to the employee in terms of extending her current arrangement speaks to an understanding of the practicalities of the employee’s family status and more particularly of the great distances she has to travel. The 12 month lead in period was a generous concession.

The Complainant’s unease about the wording of the policy creating a breach of trust just does not stack up. The employer here has always been reasonable and there is no evidence to suggest that there is not an internal mediation/grievance mechanism that would not have been operable in the event that any problems did arise in respect of the application of the new working from home policy.

The last issue raised by the Complainant related to her having attended for an interview and not subsequently getting the job. I cannot find that there is any reason to suggest that she was not offered this position other than that she was unfortunately not the best candidate. There is nothing to suggest that her family status had any bearing on the decision. It is regrettable that the decision was only made known to the Complainant long after it should have been but this was a matter of oversight on the part of the employer and all persons who attended for interview were subjected to this delay.

Decision:

The complaint is not well founded and I find that the Complainant has not made out a Prima facie case of a discriminatory treatment on the gender and/or the family status ground and did not suffer discrimination within the meaning of the Employment Equality Acts.

For the reasons outlined, the Complaint brought under the Maternity Protection Act does not succeed. 

Dated:               24 May 2017 

Workplace Relations Commission Adjudication Officer: Penelope McGrath 

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