Complainant

Respondent

Anonymised Parties

A Sales Advisor

A Furniture Retailer

Representatives

None

Peninsula Group Ltd

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-00009859-001

22/02/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 18 of the Parental Leave Act 1998

CA-00009859-002

22/02/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00009859-003

22/02/2017

The complainant worked for the respondent as a Sales Advisor. Her employment commenced on the 22nd December 2014 and ended on the 17th March 2017. She asserts that she lost hours of work following her return from maternity leave; the respondent denies the claims.

The complainant started working for the respondent on the 20th December 2014. She worked full-time hours, eight hours per day Monday to Friday. In May 2015, the complainant went on pregnancy-related long-term sick leave. She went on

maternity leave on the 2nd January 2016 and returned to work on the 15th August 2016, straight after her maternity leave ended. When the complainant came back from maternity leave, her hours were reduced to less than part-time hours. She stated that she had been on €1,642 per month net and this reduced to €437 per month net.

When the complainant was sick during her pregnancy, she spoke to the company director. He asked her to stop phoning him and to the ring the Store Manager instead. She was in touch with the Store Manager several times and informed him a couple of months before she was due to come back that she was coming back. He did not want to talk to her and said that there was no full-time job for her and there might not be a job for her at all. The complainant went to a named store and the manager repeated the same to her. He said that the only thing he could offer was a few hours, for example covering lunches. This was about three hours per day. The complainant was not happy with this. He said he would email her a rota. The complainant was afraid to lose her job and had to work.

The complainant said that following her reduced hours, her pay was reduced and was also not able to build relationship with customers and to sell to the public. When she returned, she worked at two locations. The respondent employed two managers and two other full-timers, one part-time and in the city centre store, there was one other person. The respondent may have employed two people less than before.

The complainant raised her lack of hours with the respondent. She spoke to the Store Manager as he was the first person she could talk to. There were weeks when she had no hours at all, for example in December 2016, when she had three weeks of no hours. She asked for the return of her full-time hours and was told that the respondent could not offer any more hours. Yet, at this time, the respondent was looking to recruit someone else. The manager of the city centre franchise told her that they were interviewing a woman. This took place in the week of the 26th February 2017 when the complainant attended work and was sent home because of the lack of hours.

On the 17th February 2017, the complainant started fighting for the return of her full-time hours. She met the company director, who said that he was recruiting somebody else for flexible hours. She said that she was not happy; he had the hours but not for her. The city centre manager texted her to say that she had no hours. This is the message of the 17th February 2017.

The complainant said that she always wanted to go back to full time hours. The complainant said that it felt worse as she was discriminated against and not treated the same as others. She was threatened and afraid. She did not want to lose her job. The Store Manager said that she was going to lose her job. She did not agree to reduced hours and did not sign anything. She was hired as a full-time employee. She was not provided with a contract. Other employees did not lose hours and received overtime. She raised this on the 17th February 2017. The person who was given overtime was hired after her. This is why she was forced to look for work elsewhere. The respondent kept reducing her hours.

The respondent offered the complainant a full-time job after he received the papers related to this complaint. This is the email of the 15th March 2017. She replied by saying that she was resigning. She had obtained employment elsewhere and this was a full-time role. Her new salary was €1,400 per month, €300 less than with the respondent and with no commission. She was happy with the respondent and did not want to work elsewhere. The complainant started the new role on the 10th April 2017. She did not take up the offer with the respondent as she had lost trust and felt uncomfortable. She would have accepted the offer from the respondent, had she received it before her first complaint of the 22nd February 2017. She said that the week she resigned, she was not on the rota at all. She gave her notice when there were no hours for her.

The complainant said that her Payment of Wages claim was €9,000 as this was the difference in what she received before her maternity leave and what she received afterwards. She did not avail of parental leave, but went on maternity leave and long term sick leave.

In cross-examination, the complainant said that she asked for her full-time hours in advance of the end of her maternity leave. She did this by phone. She was sure that she would get full-time hours on her return. She said that the company director was not happy to speak with her. He said that he was not sure that there would be hours for her and whether there would be a job at all. She started looking for other work in January 2017. In relation to the message where the complainant said ‘ok.great’, she wanted to keep her hours. She was sure that it was the company director’s and not a manager’s decision to reduce her hours. It was not true that the respondent did everything possible for her, for example to increase her hours. She was offered to cover lunches. She sought work during the grievance process as she did not feel comfortable in continuing with the respondent. They were looking for someone and the company director asked whether she was okay if they recruited someone else. The complainant accepted that she was offered a contract of employment and full-time hours at the end, but this was too late as she had found other work. The company director was a difficult person to work for, but she liked the job. At this stage, the trust was broken. She told the respondent that she was not okay with someone else either being hired or paid overtime, and she asked for more hours.

It was put to the complainant that she received additional hours within weeks of her return; she replied that her hours were reduced and she did not get any more hours. She had sought to keep in touch with the respondent during the pregnancy. She was sick and was surprised that the company director did not phone her any more. The complainant was asked why the respondent would offer her full-time hours and a contract when she said it was discriminating against her. It was put to the complainant that the respondent was trying to keep the complainant on. It was further put to the complainant that she accepted a job with less commission and less pay. The complainant replied that this offer was made after she lodged the claim. She had accepted the other role and her relationship with the respondent and company director was broken.

The complainant commented that her text message of the 17th February 2017 was linked to her conversation with the company director. The managers had to ask the company director for permission to do anything. The managers could not make their own decisions, even if they were managers. This is why she thought the messages and her conversation with the company director were linked.

The respondent raised several preliminary matters arising from the complaints in this case. It referred to section 101(4A) of the Employment Equality Act and that complainant could not advance a case of discriminatory dismissal and a claim pursuant to the Unfair Dismissals Act. It relied on the Labour Court authority of Jahan Company T/A Irema Ireland v Power (EDA 1326) regarding the overlapping Parental Leave and Employment Equality claims. It submitted that the complainant sought recovery for her hours being reduced pursuant to both the Parental Leave and the Payment of Wages Acts.

The respondent denies the claim of constructive dismissal. It denies that it reduced the complainant’s hours on her return from maternity leave. It was the complainant who asked for reduced hours on her return. It submitted that the first time the complainant sought full-time hours was in January 2017. It referred to the complainant’s replies in August 2016 when she positively greeted the hours allocated her following her return from maternity leave. The respondent outlined that there was a reduction in its business in late 2016 and early 2017. This led the respondent to reduce hours for staff members generally and the complainant was not singled out. It submitted that in February and March 2017, it sought to investigate the complainant’s grievance regarding her hours. The respondent submits that the complainant did not exhaust the grievance procedure. She resigned despite the respondent’s undertaking of the 15th March 2017 to allocate her full-time hours. The respondent further submits that despite saying that the bond of trust was broken, she offered to work her notice period. It submits that the complainant was inconsistent in seeking reinstatement in circumstances where she cites that the bond of trust is broken. The respondent also points to the complainant starting new employment on the 10th April 2017.

In respect of the Employment Equality claim, the respondent submits that the complainant has not advanced any actual or hypothetical comparator. It points to the fact that two staff members left the respondent and says that this was because of their reduced hours. These staff members were not replaced. It submits that the complainant has not established a prima facie case of discrimination, and if she has, this can be rebutted.

In respect of the Payment of Wages claim, the respondent submits that this is out of time. It submits that the complainant seeks redress for wages not paid between August 2016 and March 2017. The date of contravention for this claim is August 2016, so, applying Health Service Executive v McDermott [2014] IEHC 331, the six-month limitation period lapsed in January 2017. The complainant has not shown any reasonable cause to extend time. The respondent submits that the complainant has not shown that the wages were “properly payable” to her as she had no entitlement to specific hours. Furthermore, it submits that the complainant, in fact, asked for reduced hours and positively greeted the hours allocated to her.

The respondent accepted that a statement was not provided in line with the Terms of Employment (Information) Act. It submits that the respondent offered the complainant a contract in its email of the 15th March 2017, but the complainant resigned immediately thereafter. It submits that, in the circumstances, it is not just or equitable to award redress.

The respondent submits that the complaints made pursuant to the Parental Leave Act are misguided as she did not take parental leave while working for the respondent or request a varied working pattern.

In evidence, the respondent outlined that the complainant asked for part-time hours. The first time she asked for full time hours was in January 2017. All staff then had reduced hours and this was temporary. The respondent sought to investigate her complaint and to address it via the grievance procedure. The respondent submitted that the complainant has advanced loss of earnings claims under three Acts. The complainant stated that she could not work during the week because of her husband’s hours. The respondent put the recruitment process on hold as the complainant indicated she was available to work. The respondent referred to the Store Manager’s email of the 23rd February 2017 where hours were offered to the complainant. There was no contact between the respondent and the manager of the city centre store so it was a coincidence that the hours were cut. There was no causal link.

CA-00009859-001

This is a complaint made pursuant to the Employment Equality Act. The complainant asserts discrimination on the gender ground following her return to work from maternity leave in August 2016. The complainant had been on certified pregnancy-related sick leave between May and December 2015, followed by her maternity leave. Her hours were greatly reduced after August 2016. She had previously worked a five-day week, spread over the whole week.

There was a conflict in the evidence whether the complainant asked for reduced hours or were they imposed on her. The respondent attaches weight to the complainant’s texted reply of “ok.great” to the hours allocated her in August 2016 as evidence of her wish to work reduced hours. Given the evidence the complainant gave at the adjudication, I find that this was a message from an employee seeking to work her way back into the workplace after periods of sick leave and maternity leave. I accept her evidence that she was happy to take whatever hours were allocated to her but that she wanted full-time hours. I note that there is no documentary evidence to support the respondent’s contention that the complainant wanted reduced hours. The complainant gave her account of seeking increased hours and this was documented in her correspondence with the respondent. I, therefore, prefer the complainant’s evidence. I find as fact that she did not request reduced hours on her return from maternity leave.

The next issue is whether there is evidence of less favourable treatment, i.e. were the complainant’s hours reduced when compared to others. It is clear from the documentary evidence that the complainant was assigned fewer hours when compared to others. The respondent allocated overtime to others and was also looking to recruit someone else. It is striking that the complainant’s hours were reduced to such a degree over such an extended period of time.

In the light of the findings made above, the event that intervened in the complainant having a full-time schedule to a greatly reduced one was her pregnancy and maternity leave. This establishes a prima facie case of discrimination on the grounds of her gender. This has not been rebutted by the respondent, as it has not shown why colleagues retained their full-time schedules when the complainant was reduced to very few hours. Why weren’t the reduced hours spread evenly? I, therefore, find that the complaint of gender discrimination succeeds.

In assessing redress, I note the longstanding protection given in anti-discrimination law to women who are pregnant or have been pregnant. This particularly arises for women returning to work after maternity leave. I have found as fact in this case that the complainant’s hours were involuntarily reduced. I award redress of €16,000.

CA-00009859-002

This is a complaint made pursuant to the Parental Leave Act. As submitted by the respondent, the complainant was not on parental leave within the ambit of this Act. Her complaint is, therefore, not well founded.

CA-00009859-003

This is a complaint made pursuant to the Terms of Employment (Information) Act. This Act requires the employer to provide to the employee a statement of the terms of their employment. At subsection 3(1)(i), this includes “any terms or conditions relating to hours of work (including overtime)”, the focal point of dispute in this case. It also requires the employer to provide an updated statement when those terms change. This is relevant here as there was a dispute whether the reduced working hours were imposed by the employer or requested by the employee. The requirement to provide a statement in accordance with the Terms of Employment (Information) Act is a legal obligation arising from EU law and in operation in this jurisdiction since the 16th May 1994. In the circumstances of this case, I award redress of €1,600.

CA-00009859-001

I find that the complaint made pursuant to the Employment Equality Act is well founded and I find in favour of the complainant. I order redress to be paid by the respondent to the complainant of €16,000. The award is redress for the infringement of the complainant’s statutory rights and, therefore, not subject to income tax as per Section 192A of the Taxes Consolidation Act (as amended).

CA-00009859-002

I find that the complaint made pursuant to the Parental Leave Act is not well-founded.

CA-00009859-003

I find that the complaint made pursuant to the Terms of Employment (Information) Act is well founded and the respondent shall pay to the complainant redress of €1,600.

Return from maternity leave

Employment Equality Act / gender discrimination

Parental Leave Act

Terms of Employment (Information) Act