Complainant

Respondent

Anonymised Parties

A HR   Officer

A University

Act

Complaint Reference No.

Date of Receipt

Complaint    seeking adjudication by the Workplace Relations Commission under section 77    of the Employment Equality Act, 1998

CA-00007485-001

6^th   October 2016

Complaint    seeking adjudication by the Workplace Relations Commission under Section 14    of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00007485-002

6^th   October 2016

The   complainant worked as a HR Officer for a third level institution that was   amalgamated with the respondent on the 1^st October 2016. Her   employment commenced on the 1^st December 2014 and came to an end   on the 30^th September 2016. The complainant’s gross monthly   remuneration was €3,681.25.

The   complainant outlined that she worked in the Human Resources function in a   third level institution that was amalgamated with the respondent on the 1^st   October 2016. She had not been employed by the respondent but her employer   had been dissolved on 1^st October 2016. Prior to the amalgamation,   there were posts that she could have applied for. The complainant requested   that her contract be extended, but these requests were not entertained. She   outlined that a transfer of undertaking came into effect on the 1^st   October 2016 and on that date, the entity for whom she had been employed was   incorporated within the respondent.

The   complainant outlined that there had been vacant positions available that had   not been communicated to her, including in the period that she was on   maternity leave. She submitted that the respondent had attempted to hide   posts from fixed-term workers. These vacancies should have been communicated   to her. The job description for her role had been based on an equivalent position   in the respondent. The complainant had been on maternity leave from the 11^th   January 2016 to the 18^th July 2016 and in this time, she looked   for other roles. A recruitment agency brought her attention to a vacancy with   the respondent and she expressed her interest in this role. She then   contacted the HR Manager present at the adjudication. She had wished to apply   for the role and to discuss the role with the HR Manager. The agency did not   put her forward for the role.

The   complainant said that she had hoped to obtain an extension of her role and   spoke to her local manager about this. The manager said she would follow up   with a named HR manager in the respondent but there was no answer to this.   The complainant also sought to contact this HR manager directly, but did not   receive a reply. The complainant later met informally with the HR manager and   asked about possible vacancies. She had heard of possible vacancies on the   grapevine and the HR manager said she would make enquiries, but said that she   was not aware of any vacancies.

The   complainant said that on the following Monday, a friend forwarded her an   email with three vacancies with the respondent, at least one of which was   permanent. The HR Manager, present at the adjudication, was listed as the contact   person. This was despite the HR Manager telling the complainant that she was   not aware of any vacancies. The complainant submitted her curriculum vitae on   the 9^th August 2016 and this was acknowledged on the 23^rd   August 2016. The complainant said that she followed up on her application on   the 5^th September 2016 as she heard that interviews would be   taking place. A named colleague told her that an interview would be scheduled   for the 19^th September 2016 but she had already informed the   respondent that she was starting a new job on this date.

The   complainant informed the respondent that she could not attend an interview on   the 19^th September 2016 and the representative came back to say   that they could not arrange an earlier date. The complainant suggested a   later date for interview. She followed up and after not hearing anything, she   submitted this complaint to the Workplace Relations Commission.

The   complainant outlined that she commenced a named role on the 19^th   August

2016 and   this was a contract role, leaving her in an insecure, difficult position. She   could have obtained a permanent or a 12-month contract with the respondent.   She said that her current role was to end on the 12^th May 2017.

In reply   to the respondent, the complainant said that she had understood that there   were also going to be posts for people transferring. It had not been clear   what was to happen. The duties associated with the incorporation continued   after the 1^st October 2016. She had been eager to do the work that   the respondent had given an agency to do. It had only been by chance that she   found out about the vacancies. She said that the comparator had been aware of   posts and she had been advised to send in applications.

The   complainant replied that the respondent states that it was difficult to fill   the role, when she was eager to fill the role. She said that this felt   personal. It had not been possible for her to wait until the last minute for   the interview, held on the 19^th September 2016.

In   submissions, the complainant outlines that she has been unfairly treated by   the respondent and that she wishes to leave this adjudication in an amicable   way. She outlines that the respondent communicated to staff of the college in   late 2015 that there would be positions available post-incorporation for   fixed-term employees of the incorporating bodies to apply for. This role   mapping process was to be finalised during the complainant’s maternity leave.   She submits that a number of positions became available in the early part of   2016 that were not communicated to staff in the incorporating institutions in   order for them to apply for. She submits that the respondent should have informed   her of vacant positions while on maternity leave and this failure amounts to   discrimination on the family status ground, in contravention of the   Employment Equality Acts. She concludes that the respondent owes her, at   least, an explanation and an apology.

In   submissions, the respondent outlined that an incorporation process led to the   incorporation of three named constituent colleges with the respondent, a   university. This led to the creation of a single university entity. It is   submitted that the complainant is not, and was never, an employee of the   respondent. As part of the incorporation, existing staff of the constituent   colleges transferred to the new entity on the date of incorporation, the 1^st   October 2016. As the complainant’s employment ended on the 30^th   September 2016, she was not transferred on the date of incorporation. It is   submitted that the constituent college in which the complainant worked was a   separate legal entity until the date of incorporation. As the complainant was   never the employee of the respondent, it had no obligation to the complainant   pursuant to the Protection of Employees (Fixed-Term Work) Act.

The   respondent further submitted that the complainant had been employed on a   fixed-term for the specific purpose of assisting the incorporation process.   The complainant became aware of three full-time HR posts available in the   respondent and submitted her CV on the 9^th August 2016. This was   acknowledged on the 23^rd August 2016. The complainant indicated   that she had learnt informally from her manager in the constituent college   that interviews were to be held on the 19^th September 2016 and the   complainant requested a re-arranged date.   This was not facilitated. The respondent submits that these roles were   12-month roles and may have become permanent ones.

In respect   of the claim pursuant to the Employment Equality Act, the respondent outlined   that it did not breach its recruitment and selection procedures in filling   posts of 12-month fixed term contracts, including that the posts were advertised.   The respondent did not accept that the complainant has referred to an   appropriate comparator as the comparator identified had been employed both by   a constituent college and by the respondent prior to incorporation. It was   submitted that 13 employees ceased employment at the expiry of their fixed   term prior to incorporation. It denies that claim of discrimination and   states that the complainant was offered a date for interview, which could not   be re-scheduled. This is the normal position of the respondent regarding   re-scheduling interviews.

The   Employee Relations Manager gave evidence. He confirmed that the respondent   was the successor-in-title of the employer who had employed the complainant.   In respect of recruitment since the ending of the complainant’s employment,   the witness outlined that one person had been recruited in September 2016 in   a full-time role. This person was a young woman who has a family. She was   completely external to the respondent and the witness was not sure when her   interview was or when she started. He said that it was the general position   that vacancies would be advertised. Commenting on the comparator, he said   that she had an office in two locations, including where the complainant was   based, as well as a hot desk in another respondent campus.

The HR   Manager gave evidence. She said that she was surprised that her name had been   included in the advertisement for the role. She had not thought that she   would be involved in the interviews and it had been a named colleague who had   given the recruitment agency her name. At this time, she was dealing with   other incorporation work and she was not the contact person for the agency.   She confirmed that she had been the contact person for a role advertised in   April with a named recruitment agency and it had been a consultant with this   agency who had her name. The HR Manager apologised for the delay in replying   to the complainant, and said that this occurred in the context of a very busy   and fluid time. The delay was not best practice but was not personal. She   outlined that the interviews had all taken place on the one day, the 19^th   September with four candidates being interviewed in a morning session. The HR   vacancy was not filled and instead, the functions and duties were reorganised   amongst existing staff. She stated that there were no current vacancies. She   outlined that if an employee was permanent or on a fixed term contract that   went beyond the 1^st October 2016, they were guaranteed to   transfer. There had been no redundancies.

The   complainant submits two complaints arising out of how she was treated by the   respondent. The first is made pursuant to the Employment Equality Acts and   the second pursuant to the Protection of Employees (Fixed-Term Work) Act.

CA-00007485-001

The   complaint made pursuant to the Employment Equality Act is made on the grounds   of family status. The complainant availed of maternity leave of 26 weeks,   commencing on the 11th January 2016. She asserts that the way she was treated   by the respondent regarding vacancies amounts to discrimination. The   respondent denies the claim.

Section   85A of the Employment Equality Acts sets out the burden of proof in relation   to complaints of discrimination. It requires the complainant to prove the   primary facts upon which she relies in seeking to raise an inference of   discrimination. If the complainant can establish the necessary facts, and   where they are of such significance to raise the presumption of   discrimination, the burden of proof then falls to the respondent. At this   juncture, the respondent must rebut the inference of discrimination,   presuming, of course, that the complainant has been able to establish such a prima facie case. If the complainant   does not discharge the initial probative burden then her case cannot succeed.

Having   considered the evidence, I find that the complainant has not established   primary facts that establish a prima facie case of discrimination. While the   complainant is dissatisfied with how she was treated by the respondent at the   expiry of her fixed-term contract and at the time of the incorporation, there   is insufficient nexus between this and her maternity leave or her family   status. In this regard, the claim does not succeed.

CA-00007485-002

The second   complaint is made pursuant to the Protection of Employees (Fixed-Term Work)   Act. The complainant asserts that she was not informed of employment   opportunities with the respondent and not facilitated with an interview when   she identified an opportunity. The respondent denies the claim and also makes   a preliminary objection that the complainant cannot advance this claim as she   was never an employee of the respondent.

Section 2   of the Protection of Employees (Fixed-Term Work) provides the following   definitions of “employee”, “employer” and “fixed-term employee”:

“employee” means a person of   any age, who has entered into or works under (or, where the employment has   ceased, entered into or worked under) a contract of employment and   references, in relation to an employer, to an employee shall be construed as   references to an employee employed by that employer…

“employer” means, in relation   to an employee, the person with whom the employee has entered into or for   whom the employee works under (or, where the employment has ceased, entered   into or worked under) a contract of employment;

“fixed-term employee” means a   person having a contract of employment entered into directly with an employer   where the end of the contract of employment concerned is determined by an   objective condition such as arriving at a specific date, completing a   specific task or the occurrence of a specific event but does not include—

(a) employees in initial   vocational training relationships or apprenticeship schemes, or

(b) employees with a contract   of employment which has been concluded within the framework of a specific   public or publicly-supported training, integration or vocational retraining   programme”

Section 10   provides the following protection to fixed-term employees:

“10.—(1) An employer shall   inform a fixed-term employee in relation to vacancies which become available   to ensure that he or she shall have the same opportunity to secure a   permanent position as other employees.

(2) The information referred to   in subsection (1) may be provided by means of a general announcement at a   suitable place in the undertaking or establishment.

(3) As far as practicable, an   employer shall facilitate access by a fixed-term employee to appropriate   training opportunities to enhance his or her skills, career development and   occupational mobility.”

In Aer Lingus v A Group of Workers [2005]   E.L.R 261, the Labour Court held as follows in relation to section 10: -

“The first limb of the   subsection clearly obliges an employer to inform fixed-term employees in   relation to vacancies which become available. The second limb describes the   object or purpose of this requirement as being to ensure that fixed-term   employees have the same opportunity to secure a permanent position as other   employees. It is noteworthy that the obligation created is not just to inform   the employees in question of vacancies for permanent positions but of   vacancies which may enable them to obtain permanent positions. Thus it is   wide enough to cover a situation in which a position may be initially   temporary but will be subsequently made permanent. “

The   complainant was employed by the constituent college that was subsequently   incorporated within the respondent, a university. The date of incorporation   was the 1^st October 2016. At this date, it appears that the constituent   college went out of legal existence and the respondent became the   successor-in-title of the constituent college. In evidence, the witnesses for   the respondent accepted that the respondent was the successor-in-title of the   constituent college. On the 6^th October 2016, the complainant   submitted these complaints.

From the   evidence, it is clear that neither the constituent college, nor the   university informed the complainant of vacancies. The complainant found out   about three roles through a contact in a third party recruitment agency and   applied for the role. The roles were for a fixed-term, but the advertisement   specifically refers to their being “with a view to becoming permanent”. The   complainant was unable to attend an interview scheduled for the 19th   September 2016 and the respondent could not facilitate a re-arranged date.   The roles were with the university. There was reference in the evidence and   in the documentation to the “informal” role played by the complainant’s   manager in the constituent college. This manager relayed information   regarding the vacancy and the complainant’s application to the respondent. Neither   this manager, nor any other representative of the constituent college, informed   the complainant of vacancies it had or were available in the university.

In respect   of the relationship between the constituent college and the university, the   complainant asserts that all appointments made by the constituent college   that went beyond the 1^st October 2016 required the approval of a   named committee of the university. She refers to decision-making control in   relation to staffing resting with the university. The respondent asserts in   reply that the constituent college was a separate legal entity until the date   of incorporation.

For the   complaint to succeed, the complainant must show that the respondent is the   correct respondent to this claim and also that it can be fixed with liability   under section 10. Having considered the evidence and submissions of the   parties, I conclude that the complainant has locus standi to bring the claim.   I reach this finding for the following reasons. First, the respondent is the   successor-in-title of the constituent college. This was accepted in evidence   at the adjudication and arises because the constituent college was   incorporated within the respondent on the 1^st October 2016. It   appears that the constituent college no longer has a legal existence and was   subsumed within the respondent. If one tripped and fell in the campus of the   constituent college on the 30^th September 2016, the claim would be   against the respondent. Ditto for an employment law claim. For this reason, I   find that the complainant can advance a claim naming the university as a   respondent relating to her employment with the constituent college.

Second, it   is obvious that the process of incorporation meant that there was a close   relationship between the university and the constituent college regarding   recruitment and staffing decisions. The complainant went so far as to say   that a named committee of the university could prevent any appointment that   went beyond the date of incorporation. The respondent referred to a complex   employment relationship which allowed the comparator to continue in   employment beyond this date. It is also striking that information regarding   the complainant’s application to the respondent in September 2016 was shared   with her manager in the constituent college, and where the manager relayed   information on behalf of the respondent. In these unusual circumstances, I   find that the obligation arising from section 10 of the Protection of   Employees (Fixed-Term Work) Act included the obligation to inform the   complainant of vacancies in the respondent. This arises because the   respondent was the successor-in-title of the constituent college and   vacancies within the purview of section 10 could only be made available by   the respondent. The respondent qua   constituent college was obliged to inform the complainant as a fixed-term   worker of available positions in the both the constituent college and the university,   where the positions were permanent or could lead to a permanent role.

It is not   disputed that the vacancies of the three HR positions were not notified to the   complainant. She became aware of them through a contact. The respondent   asserts that it was not required by its policies to advertise the roles   internally. The failure to inform the complainant of available position was a   breach of section 10 of the Protection of Employees (Fixed-Term Work) Act and   led to the protracted email exchange between the complainant and HR managers   of the respondent. Given the circumstances of the breach, I award the   complainant redress of €2,000 for the breach of the Act.

CA-00007485-001

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.

I find that   the complainant has not established a prima   facie case of discrimination on the family status ground and the   complaint is not well-founded.

CA-00007485-002

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

I find that   the complaint made pursuant to the Protection of Employees (Fixed-Term Work)   Act is well-founded and I award redress of €2,000.

Successor-in-title

Section   10, Protection of Employees (Fixed-Term Work) Act

Aer Lingus v A Group of Workers [2005] E.L.R 261