Employment Equality Acts
Decision No: DEC-E/2017/070
PARTIES
An Employee
(Represented by Hennessy & Perrozzi, Solicitors)
-v-
An Airline Company
(Represented by ibec)
File No: et-155311-ee -15
Date of issue: 20 September, 2017
Keywords
Employment Equality Acts - discriminatory treatment - pregnancy- working conditions - promotion -prima facie case
1. Dispute and delegation
1.1 This dispute concerns a claim by the complainant that she was subjected to discriminatory treatment in her working conditions by the respondent on the grounds of gender and family status in terms of Sections 6 of the Employment Equality Acts and contrary to the provisions of Section 8 of those Acts. In this regard, she alleges that she was discriminated against in relation to access to promotion. She also alleges that she was discriminated against in relation to access to parental leave. The complainant further alleges that she was discriminated against in relation to the maternity packages provided by the respondent.
1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 25 March 2015 under the Employment Equality Acts. On 16 January, 2016 in accordance with her powers under section 75 of the Acts, the Director then delegated the case to Valerie Murtagh - an Equality Officer - for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on 27 February 2017.
2. Summary of the Complainant’s case
2.1 The complainant commenced work with the respondent in 2002 as a crewing officer. In 2005, she was promoted to the position of operations controller and in 2008 she was promoted again to the position of duty manager, which is her current role. The complainant states that in 2010, she became pregnant and gave birth to her first baby in November of that year. The complainant took the full statutory six months maternity leave during which time her salary was paid in full as well as taking two full months of annual leave for which she was also paid her full salary. The complainant returned to work following her periods of leave with no issue. In May 2012, the complainant had her second baby and again took maternity leave, however without notice to the complainant a reduced maternity package was in place at this time. The complainant submits that the reduced maternity package was tailored for an office hours’ worker which did not pertain to the complainant as an operations duty manager and following representations by the complainant and presentation of options by the respondent, an alternative maternity package was agreed. Notwithstanding the reduced package (at 88% of her salary) the respondent still permitted the complainant to take annual leave following her maternity leave which was paid in full. The complainant states therefore that she was discriminated against on grounds of taking maternity leave as clearly the respondent was concerned at her availing of a second period of maternity leave. The complainant submits that there was no reason for the refusal to discharge her full salary during her second maternity leave and this was in breach of the Acts. The complainant submits that she was not notified as to any changes as regards the maternity package between the complainant’s first and second confinement.
2.2 The complainant states that she went on maternity leave for a third time in May 2014 and at the end of her statutory maternity leave decided to take the extended period of maternity leave to which she is entitled. The complainant states that she was informed on this occasion the maternity package was standardised to 90% of her full salary payment during the maternity leave. Again the complainant submits that she only became aware of the change in the maternity package upon notifying the respondent of her pregnancy. The complainant maintains that she felt discriminated against by the respondent as there was a lack of communication with the complainant. No standard maternity package was put in place. The complainant states that the maternity package for a duty manager was made up on a pregnancy by pregnancy basis and she was the only duty manager to have been put in this position.
2.3 The complainant submits that during her third maternity leave, by chance she became aware that a promotional vacancy became available within the company. While she was not informed of the vacancy by the respondent, she found out about the position from a colleague. She states that it was her line manager that was leaving the company. In or around 3 December, 2014 the complainant contacted the respondent and spoke to Ms. L in HR and expressed an interest in applying for the position of Operations Control Manager and the complainant posed general queries in respect of that position. The complainant states that at that stage, she was informed by Ms. L that the post needed to be filled immediately and if the complainant was indeed successful at interview then she would have to cut short some of her maternity leave. The complainant submits that the treatment by the respondent in this manner constitutes a clear breach of the employment equality legislation. Following a discussion with her husband, the complainant reverted to the respondent the next day by way of e-mail to inform the respondent that in circumstances wherein she would have to give up the remainder of her maternity leave, she was not in a position to apply for the promotion and expressed her disappointment in this regard.
2.4 The complainant also states that when she enquired about taking parental leave when she returned to work, in the form of one night shift off per week rather than taking a block of parental leave, the respondent refused this request stating it was unworkable given the nature of the complainant’s role. The complainant states that despite various attempts by her to provide options to taking her parental leave in a flexible manner that was suitable to her requirements, the respondent continued to refuse her requests.
2.5 The complainant has cited the following caselaw in support of her case, Dekker v Stichting Vormingscrentrum voor Jong Volwassen (C-177/88) Webb v EMO Cargo (C-32/93) Brown v Rentokil Ltd. (C-394/96) Gardiner v Mercer Human Resources Consulting DEC-E2006-007, O’Brien v Persian Properties t/a O’ Callaghan Hotels DEC- E2010-010 and Lane v MBNA DEC-E2008-051.
3. Summary of the Respondent’s case
3.1 The respondent states that it employs 550 staff in Ireland out of a total workforce of 1800 in Europe. It is involved in passenger and air freight and also leases aircraft and services. The respondent states that the complainant commenced with the company in June 2002 as an operations support officer and was promoted to operations controller in 2005. She became duty manager in 2008. The respondent submits that there are four duty managers in the company and one substitute who, whilst employed elsewhere in the company, perform the role of duty manager in emergency situations. The respondent states that the role of duty manager is a specialised function and is not readily interchangeable with other staff in the company.
3.2 The respondent states that the complainant sought parental leave on a 1 night shift off per working week (per 4 shifts) basis. The respondent submits that it advised the complainant that it could not facilitate the request as submitted but was willing to look at other possibilities to allow a flexible use of the parental leave allocation. In this regard, the respondent states that it advised the complainant that parental leave in a fragmented manner could not be facilitated given the business needs of the company. The respondent submits that no other shift worker was undertaking or had undertaken parental leave in a fragmented manner. The respondent contends that at no stage was parental leave refused.
3.3 The respondent refutes the allegation that the complainant was refused a promotion. The respondent notes that the complainant said that she became aware through a colleague that a vacancy had arisen. In this regard, the respondent states that HR uploaded the job vacancy on its Intranet facility on Friday 28 November 2014. It states that while she did enquire about the vacancy, she did not submit an application. The respondent states that following a call between the company and the complainant in or around 3 December, the job advertisement was e-mailed to her. The job advertisement was open from Friday 28 November until 7 December 2014. The company refutes that it gave incorrect advice regarding the promotional vacancy but it states that it was open to the complainant to apply for the position as advertised. The respondent submits that the complainant elected not to apply for the promotional post.
3.4 In relation to maternity packages; the respondent states that it is at the company’s discretion to offer a private company maternity package. The respondent states that at the time of the complainant’s second pregnancy, the policy of the respondent was to provide 88% of an employee’s salary. The respondent refutes the allegation made by the complainant that she was informed by the company if she gave up her holiday and bank holiday entitlements that she would be paid her full salary. The respondent submits that under the complainant’s terms and conditions of employment, she was entitled to statutory maternity pay. The company offered on a discretionary basis, enhanced terms to this amounting to 88 % of pay during maternity leave on the proviso that no further entitlement for time off, holidays or public holidays would accrue during this period. The respondent states that as an alternative, the employee was entitled to receive statutory holidays and public holidays and the amount the company would enhance pay, beyond the statutory minimum, would be reduced. The aim was to give employees the choice between time off and pay and was dealt with on a case by case basis. The respondent submits that its policy in this regard was explained to the complainant and she elected for the 88% package.
3.5 The respondent submits that the complainant was not notified of changes to the maternity package between pregnancies nor was any other member of staff who was pregnant. The respondent submits that the maternity package is at the company’s discretion and is subject to change. The respondent states that by the time the complainant was in her third pregnancy, the company was in a better financial state and changed its package from 88 % to a better package of 90% and this continues to be the payment. The respondent maintains that there is no difference in the maternity benefit package available to employees within the company and it submits that there is no distinction between the duty manager role and other staff. The respondent submits that “a lack of communication” is not discrimination. In conclusion, the respondent submits that the complainant was not discriminated against on grounds of gender or family status in her employment and that there is no basis to her complaints.
4. Conclusions of Equality Officer
4.1I have considered all the evidence both written and oral presented to me. Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to her. If she succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the respondent. In deciding on these complaints, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. In a previous Determination, the Labour Court[1], whilst examining the circumstances in which the probative burden of proof operates, held as follows –
"Section 85A of the Acts provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”
4.2 The issues for decision by me in this case is whether or not the complainant was discriminated against on the gender ground and the family status ground in relation to her conditions of employment.
It is evident from a line of authorities starting with the decision in C-177/88, Dekker v Stichting Vormingcentrum voor Junge Volwassenen [1990] ECR 1-3841 and from the legislative provisions of
the European Union that women are to be afforded special protection from adverse treatment from the commencement of their pregnancy until the end of their maternity leave. The jurisprudential principle that discrimination on the ground of pregnancy constitutes direct discrimination on grounds of sex is now codified in Directive 2006/54/EC on the Principle of Equal Treatment of Men and Women (the Recast Directive). This Directive provides at Article 2. 2 (c) that any less favourable treatment of a woman related to pregnancy or maternity leave within the meaning of Directive 92/85/EEC constitutes unlawful discrimination for the purpose of that Directive.
Directive 92/85/EEC (the Pregnancy Directive) provides a comprehensive legal framework in which special protection is afforded to the safety, health and welfare of pregnant women in employment.
4.3 In relation to the promotional vacancy, I am satisfied that the complainant was not advised about the position by the respondent while she was on maternity leave but only found out by chance when a colleague advised her of same. In the circumstances, therefore, I find that the respondent did treat the complainant less favourably on account of her being on maternity leave, in that, it did not inform her of the promotional post. While it placed the advertisement for the vacancy on the Intranet of the respondent company, I note that the complainant did not have access to same as she was on maternity leave at this juncture. Given the vacancy was that of the complainant’s manager, I am of the view that HR could have anticipated that the complainant may have an interest in applying for same. Therefore, I find that the complainant has established a prima facie case of discrimination in relation to failure by the respondent to notify her of the promotional post.
4.4 In relation to access to the promotion itself, I note that following being informed by a colleague of the position, the complainant raised queries in relation to the said position with HR. The complainant maintains that she did not apply for said post on the basis that she was informed by HR that should she be successful in the selection procedure, she would have to consider foregoing some of her extended maternity leave as the post was required to be filled at the earliest opportunity given the requirements of the business. The respondent states that the successful candidate was required to be available to commence in the promotional post on 1 January 2015 which duly occurred and the complainant was not due back until May 2015. The respondent also states that the complainant was taking her statutory maternity leave which was completed on 28 November 2014 and then commencing a period of paid annual leave from 29 November until 16 January 2015 prior to commencement of the complainant’s additional maternity leave. In her evidence Ms. L, HR manager stated that she informed the complainant that should she be successful in getting the post, she may need to consider coming back a bit earlier and it may affect her additional maternity leave. Ms. L stated that she felt this was a reasonable request given the urgency of the filling of the vacancy due to business demands. Ms. L also stated that the complainant had stated to her that due to her husband’s existing commitments with his new start-up company, she would be unavailable during this period. There is a conflict of evidence on this issue. The complainant’s husband gave testimony stating that he was present when the complainant received a call from HR stating if she was successful in the position, she would be required to forego her maternity leave to commence in the position immediately. Having carefully examined all the evidence, I find that it is a hypothetical argument as the complainant did not apply for the promotional post and had she done so and then found that she was discriminated against, in that, a person less qualified than her got the post then it would be a matter for her to challenge same. Therefore, on balance, I am satisfied that the complainant has not demonstrated prima facie evidence that she was discriminated against on grounds of gender and family status in relation to selection for the promotional post given that she did not apply for the position.
4.5 The complainant has also alleged that she was discriminated against in relation to the maternity packages she received. In this regard, she states on her first maternity leave in 2010 she received her full salary but in 2012 on her second maternity package, this was reduced to 88% of salary and on her third maternity leave, she received 90% of her full salary payment during her maternity leave. In relation to the maternity packages, having carefully examined this issue, I am satisfied that payments regarding maternity benefit were at the discretion of the employer and that following the economic downturn, in 2012, the package was reduced to 88% and this applied to all pregnant employees but on the complainant’s third maternity leave, the company was in a better financial state and the package was increased to 90% for employees. I am satisfied that on the basis of the documentation submitted there were various options available and the final package was agreed with the employee with their preferred option in conjunction with HR. I can find no evidence that the complainant was treated in a less favourable manner than other similar employees on this matter and therefore I find that the complainant has not demonstrated a prima facie case in this regard.
4.6 In relation to the complainant’s allegation that she was discriminated against on her return from maternity leave, in that, she was denied access to take her parental leave on the basis of availing of one shift off per week. I have examined this matter and the respondent examined the option of the complainant availing of one night shift off per week but it stated that given the complainant’s work pattern that being Operations Duty Manager and the fact the company has just one person to cover 2 x 24 hour desks, that being Operations and Flight Dispatch, this situation is already difficult without the use of overtime on a monthly basis. The respondent also stated that there would be a requirement to utilise the fifth Duty Manager each week which would limit leave capability within the complainant’s department and therefore due to business demands, the option of one shift off per week was not an option. I note from the documentation submitted that subsequently the complainant availed of her parental leave on the basis of two blocks of 9 weeks, the first period from 17 November until 19 January 2016 and the second block from 6 July 2016 until 7 September 2016. Having carefully examined all the evidence on this issue, I find that the complainant has not demonstrated prima facie evidence of discriminatory treatment on grounds of gender or family status in relation to access to her parental leave. I am satisfied that the company examined the option of taking one shift off per week but due to the complainant’ s specific role and work pattern and the company’s business demands, the respondent deemed it unsuitable on the basis of operational reasons and advised the complainant it was not in a position to do so but informed the complainant that she could take it in block format as she did subsequently. Consequently, I find that the complainant was not discriminated on grounds of gender and family status in relation to access to parental leave.
5. Decision of the Equality Officer
5.1 In reaching my decision, I have taken into account all the submissions, written and oral that were made to me. Having investigated the above complaints, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998 to 2008.
5.2 I find that the respondent did discriminate against the complainant on the gender and family status ground pursuant to section 6(2) of the Acts and contrary to the provisions of section 8 of the Acts by the respondent’s failure to notify the complainant of the promotional vacancy while she was on maternity leave.
5.3 I find that the complainant was not subjected to discrimination on grounds of gender and family status in relation to access to the promotional post.
5.4 I find that the complainant was not discriminated against on grounds of gender and family status in relation to the maternity packages or parental leave.
5.4 In accordance with section 82 of the Acts, I order the respondent to pay the complainant the sum of €5,000 by way of compensation for the distress suffered as a result of the failure of the respondent to notify the complainant of the promotional vacancy while she was on maternity leave. This figure relates to compensation for the effects of the discriminatory treatment and does not include any element relating to remuneration and therefore is not subject to taxation.
____________
Valerie Murtagh
Equality Officer/Adjudication Officer
20 September, 2017
Footnotes
[1] Arturs Valpeters v Melbury Developments [2010] 21 E.L.R. 64.