ADJ-00008165

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-00010857-001

18/04/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 30 and 31 of the Maternity Protection Act 1994

CA-00010857-002

18/04/2017

The complainant commenced working with Bord Gais as a contractor in 2012. When a permanent position was advertised with Irish Water she discussed the matter with her superiors and was assured that the respondent was flexible in relation to location. The complainant was based in Cork. On that basis she applied for the position. She was successful. The respondent allowed the complainant work from her home in Cork two days a week, Monday and Friday. On the days she travelled to Dublin she commenced her working day at 8am on the train to Dublin. Again, the respondent had no issue with that. The complainant received very positive performance reviews and after six months was promoted. Following her promotion he continued to work as before, two days a week in Cork etc.

In November, 2015 the complainant commenced maternity leave. Her baby was born in late November. She took extended unpaid leave. Towards the end of her extended leave she received a phone call from her line manager who told her that while she was out on leave there had been extensive changes and she would now be required to work in Dublin five days a week. She stated that the lady who was covering her maternity leave was doing back to back meetings in Dublin five days a week. She then went on to say that with a young baby at home it wasn’t feasible for her to work in Dublin five days a week. She told her to talk to HR with a view to getting a job in Cork. The complainant was shocked. She did however ask if she could get one day a week paternity leave. She was told that she could not as there were already two other ladies in the department availing of paternity leave so the company would not grant it to a third.

The complainant, having discussed the matter with her husband decided that securing a base in Cork was her only option. She was still breastfeeding and couldn’t do five days a week in Dublin. She called the HR department however nobody got back to her. She left several messages. After a period of three weeks HR returned her call. After lengthy discussions, they agreed that she could take one day a week paternity leave. They also agreed to a temporary return to work schedule. That schedule was a follows:

Monday and Friday - Cork

Tuesday and Thursday – Dublin

Wednesday – Leave.

That schedule was from the 17^th October – 20^th January, 2017. Thereafter she would do five days a week in Dublin.

The complainant returned to work on the 17^th October, 2017. On the days she was in Dublin, she left her home at 5.30 am to get the 6am train. She didn’t get back home until late in the evening. She found that X (maternity cover) was retained by the respondent and was doing all of her work. She had nothing to do. She asked X if she could be included on some of the projects but was told that the line manager only wanted one person on them. Before she went on maternity leave she had her own projects and she wrote the reports in relation to them. After she returned she no longer had her own projects and didn’t write any reports as a result. The complainant felt she was being treated less favourably than almost everyone else. Employees, who didn’t have the same family commitments that she had , their roles where not altered after the alleged “ extensive changes”. Furthermore, she identified the aforementioned X. Her children were of school going age and she didn’t take maternity leave whilst with the respondent, her terms and conditions were not altered. Also, her line manager, who is based in Dublin, she was allowed to return to the same role following her maternity leave.  She found the experience very upsetting. She was getting up in the middle of the night and leaving her baby, to travel to Dublin to do nothing. She felt she was being pushed out.

The head of corporate affairs told the complainant that she was welcome to come and work with her in Cork but only if HR approved it. HR refused her request.

As the complainant spent more time in the Dublin office she discovered that X was not doing the back to back meetings as indicated by her line manager. She had to physically attend at two meetings per week. That was the same regime the complainant had prior to going on maternity leave. She raised her concerns with HR. They state that they would look into it and revert back to her. They never did.

The January deadline was extended to March due to a family bereavement. All the while the respondent was putting the complainant under pressure to give them a decision as to whether she would do the five days a week in Dublin. She was given two options, do the five days in Dublin or resign. She tried to state her case but she noticed that HR was getting very aggressive. She was getting more and more concerned about her job the more pressure they put on her.

She called the employee assistance programme. She was told to file a claim with the WRC in order to protect her position. She then called HR and told them what advice she had received. Again HR got very aggressive and stated that if didn’t accept the five days a week in Dublin offer they would have to pay her remuneration and let her go.

The complainant found the experience very stressful. On top of that she was still breastfeeding, was trying to secure a mortgage for their first home and was trying to secure her employment position. She became ill due to the stress and was certified unfit to work from the March, 2017. She has not returned to date. However, her GP stated that she was fit t engage with the respondent. At this stage the matter was being dealt with by the competition and head of benefits manager (competition manager). A meeting was arranged for the end of July. The complainant attended that meeting with her trade union representative. After that meeting, the return to work schedule was expended for another six months. The complainant felt that that was simply kicking the can down the road. She was still left in the same position with no job security and with the ‘ five days a week in Dublin’ hanging over her.

The complainant made contact with the respondent in August but they did not return her calls.

The complainant stated that her professional confidence has been shattered. She is having panic attacks and a neck tremor she had when she was in her very early twenties has return.

No Appearance.

Relevant Statutory Provisions:

Employment Equality Act, 1998

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are

(a) that one is a woman and the other is a man (in this Act referred to as “the gender ground”),

(c) that one has family status and the other does not (in this Act referred to as “the family status ground”),

(a) access to employment,

(b) conditions of employment,

(c) training or experience for or in relation to employment,

(d) promotion or re-grading, or

(e) classification of posts,

an employer shall not discriminate against an employee or prospective employee and a provider of agency work shall not discriminate against an agency worker.

The issues for consideration by me are whether or not the respondent discriminated against the complainant on grounds of gender and family status and conditions of employment, in terms of section 6(2) of the Employment Equality Act, 1998 and contrary to section 8 of that Act, in that when she resumed work in October, 2016,following her   maternity leave, the respondent     failed to return her to the post she held before she had commenced that leave.

Post maternity leave, less favourable treatment, is a matter that the Labour Court has dealt with most robustly. Precedents have shown that the Court has been prepared to apply the spirit of the Maternity Protection Acts in the exercise of its jurisdiction under the Employment Equality Acts.

Women who return from maternity leave are entitled to return to their job or to an equivalent post on terms and conditions that are no less favourable. In this particular case the complainant was asked to return to a role, the terms and conditions of which were substantially different to and less favourable than those she held before maternity leave. Prior to maternity leave, she was in charge of her own projects, she wrote her own reports and with the respondent agreement she worked two days a week from Cork. Post maternity leave she was not given any of her own projects therefore, she wrote no reports, she had little or no work to do, she was continually pressurised into working five days a week from Dublin or to resign. The complainant, having assessed the situation whilst in Dublin could not find any of the alleged ‘extensive changes’ that actually had an effect on her role. I find that the complainant’s role post maternity leave, was substantially different both in actual terms and in terms of her status within the department, to the one she held prior to going on leave.

Having considered the uncontested evidence of the complainant, I find that the respondent discriminated against the complainant on grounds of gender and family status and conditions of employment in terms of section 6(2) and section 8 of the Employment Equality Acts, 1998-2004, when it failed to allow her return to the job or an equivalent role, to that which she held immediately before maternity leave.

The discriminatory treatment the complainant was subjected to has had a very significant effect on her health. She is suffering from panic attacks, she isn’t sleeping, she is tearful all the time, her confidence both professionally and personally has been shattered and a dormant neck tremor has returned. The tremor was visible during the hearing.

In all the circumstances, I order the respondent to pay the complainant the sum of €35,,000 by way of compensation for the distress suffered by her as a result of the discrimination.