ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00004815

Complaint(s)/Dispute(s) for Resolution:

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00006867-001	07/09/2016

Date of Adjudication Hearing: 10/01/2017

Workplace Relations Commission Adjudication Officer: John Tierney

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 [and/or Section 8(1B) of the Unfair Dismissals Act, 1977, and/or Section 9 of the Protection of Employees (Employers’ Insolvency) Act, 1984, and/or Section 79 of the Employment Equality Act, 1998, and/or Section 25 of the Equal Status Act, 2000] following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Complainant’s Submission and Presentation:

I worked for the Respondent for a number of months earlier this year. I worked well and was commended for my work. I was told by the Respondent before the summer vacation that they hoped to offer me work in the new term but were unsure at that time whether they would be. The Respondent contacted me on 22nd August 2016 by email and offered me a position as ABA (Applied Behaviour Analysis) Tutor. Attached to this email was a more extensive, more formal, letter of offer, incorrectly dated 19th April 2016, but which I received with the email on 22nd August 2016. The offer was conditional upon "receiving satisfactory references and Garda Vetting clearance". There was no other precondition to the offer. The offer stated that the commencement date would be 29th August 2016. I was delighted to accept this offer and did so by way of email of 23rd August 2016. At that point, I was approximately 4 months pregnant and thought it only fair that I inform the Respondent of my circumstances. I did so by email of 23rd August 2016 at 6-55pm. At approximately 7-30pm I had a missed call from the Respondent who left a voicemail asking that I call her. I had not picked up that voicemail before I received a text message from the Respondent at 8-01pm withdrawing the offer of employment purportedly on the basis that a child she had assigned to me was not eligible for the HTG (Home Tuition Grant) funding. No mention of any specific child or funding was mentioned in the letter of offer I had accepted. I believe I have been discriminated on the basis of my pregnancy.

The Claimant contract was 35 hours per week beyond the limits of the HTG scheme (10/20 hours depending on the child’s age). Therefore, the withdrawal of the offer based on a child’s ineligibility for funding argued by the Respondent is factually false.

Respondent’s Submission and Presentation:

The Claimant had been employed as an ABA Tutor by the Respondent on a fixed term contract between May – July 2016. This contract was funded by the HGT Scheme. This funding ceased when the child whom the Claimant worked with left the Playschool and her employment ceased.

The Respondent made an informal enquiry if the Claimant might be interested in another ABA position should it become available. It was made clear to all tutors including the Claimant that any position would be subject to HGT Scheme funding.

The Respondent offered the Claimant an ABA Tutor role as they had been assured that funding would be provided to a child who was to commence with them on 29 August 2016. The Claimant accepted this offer. On 23 August 2016, the parents of this child were informed by the Department of Education that it was ineligible for the funding and therefore could not attend. This was communicated to the Respondent on the evening of 23 August. The Respondent did not have an opportunity to liaise with the Department until 24 August. The Department confirmed the child was ineligible for funding. The Respondent made concerted efforts to secure another child who was eligible. Financially, in the absence of funding, it was not possible to employ the Claimant.

The Respondent notified the Claimant by phone and left a voice message. As there was no direct contact, they sent a text message to give her ample notice of the lack of funding and to allow her to avail of other positions that were arising around this time.

The Claimant was offered the position in good faith but the Department changed the criteria for eligibility for grants from the HTG scheme. The Claimant was aware that all ABA Posts are subject to funding by the Department, particularly by virtue of her first contract with the Respondent. Most importantly, no other ABA tutor has been employed by the Respondent.

Decision:

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

I have considered the submissions of the parties. In dealing with the terms of the offer in question, made to the Claimant; the Respondent advised the Hearing that the 35 hour week was made up of four hours per day with a child and the rest is made up of paperwork and related matters. I note that the Claimant in her previous contract signed a document on Confidentiality Policy & Procedures; this contained a Pregnant Risk Assessment form. The copy of the standard contract for ABA tutors made it clear that the position is depended on HTG funding. I further note that no one else filled the ABA position in question.

Therefore, based on the above evidence, I accept that on the balance of probability that the Respondent did not discriminate against the Claimant under the terms set out in the Employment Equality Acts 1998 – 2011.

I do not find the claim well founded.

Dated: 15^th May 2017