Complainant

Respondent

Anonymised Parties

Receptionist

Security Company

Representatives

Mairéad Carey, Carey Solicitors

Hugh Hegarty M.S.S.

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-00018784-001

27/04/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00018784-002

27/04/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00018784-003

27/04/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00018784-004

27/04/2018

CA-00018784-001/2/3/4 – The claimant was an employee of a security company since July 2014, where she worked as a receptionist at a client company in Swords. Services to that company were provided by the security company. The claimant went on maternity leave in August 2017 and was due to return in March 2018. On the appointed date she was told to go to the company, where she was informed that the client company preferred her (male) replacement. She was offered an alternative post in Ballymount. However, as she lives in Rush and is dependent on public transport, this would entail a daily 4-hour commute. Initially, she was advised that the position would be a 3-month fixed term contract, which was subsequently revised to a 6-month fixed term contract (though she was a ‘permanent’ employee). This new position was (allegedly) on terms substantially less favourable than those of her previous job. Accordingly, it was alleged that this revision amounted to discrimination under the Employment Equality Act. The employer ceased paying the claimant’s wages on Monday 16th April 2018, thus giving rise to (an alleged) discriminatory dismissal. Payment in respect of any leave and notice entitlements is outstanding.

CA-00018784-001 – The complainant was an employee of the security company since July 2014, working as a receptionist at a client company in Swords. She worked primarily in reception. The terms of her contract, set out in a letter dated 18th July 2014, were that she would be primarily based on site in Swords. Since taking the position, she never worked outside of that site.   She was paid €10.01 per hour and was required to work up to 40 hours per week. On 5th March 2015 she was offered a contract of indefinite duration and deemed to be a ‘permanent employee’. She was never the subject of any complaint or the disciplinary procedure. She informed her employer that she was pregnant in February 2017. The complainant went on maternity leave in August 2017 and was due to return to work (in Swords) on the 5th March.

On Saturday 3rd March, she was told to go to a meeting in Ballymount, where she was informed that she would not be permitted to return to her job in Swords, as the client company preferred her replacement. The only alternative job for her was in Ballymount which, as she lives in Rush and is dependent on public transport, would require a four-hour daily commute.   At first this new position was to be by way of a three-month fixed term contract, but was later changed to a six-month fixed term contract (though she was a permanent employee). This could not be considered as suitable alternative employment. The Respondent ceased paying her wages on Monday 16th April, thereby repudiating her contract of employment.

However, the respondent maintained that she was still an employee and refused to provide her with a P45 (which meant she was unable to get social welfare payments). Furthermore, this event consequentially impinged on her bank credit rating and her doctor referred her for counselling.

With reference to case’s the legal context, it is notable thatSection 26 of the Maternity Protection Act, 1994 provides:

‘Subject to this Part, on the expiry of a period during which an employee was absent from work while on protective leave, the employee shall be entitled to return to work …

(b) in the job which the employee held immediately before the start of that period, and

(c) under the contract of employment under which the employee was employed immediately before the start of that period … and (in either case) under terms or conditions not less favourable than those that would have been applicable to the employee if she had not been so absent from work.’

The complainant was entitled to return to work in the place where she had worked, in the job and under the same contract of employment which she held before going on maternity leave. Under Section 26 (3) of the aforementioned Act, ‘job’ ’means the nature of the work which she is employed to do in accordance with her contract of employment and the capacity and place in which she is so employed’. Under Section 27 of the Act, if it is not reasonably practicable to allow an employee return to her work, then she must be provided with suitable alternative work. This new position should not be on terms substantially less favourable than those of her previous job. Section 27 (2) of the Act provides that: ‘suitable alternative work’ extends to ‘… the terms or conditions of the contract relating to the place where the work under it is required to be done, the capacity in which the employee concerned is to be employed and any other terms or conditions of employment …’. Accordingly, it is alleged that the employer’s actions constitute discriminatory treatment under the Employment Equality Acts. Case precedent supports this conclusion (e.g. Loftus v O’Sullivan [EDA1825], Browne v Rentokil [1998 ECRI/4185], Webb and EMO Cargo Case C-32/93). Accordingly, the claimant sought an award that is effective, proportionate and dissuasive, in line with case precedent (Von Colson & Kamann v Land Nordrhein-Westfalen [1984] ECR 1891).

CA-00018784-001 - Section 6 of the Employment Equality Act makes it clear that for discrimination to occur one person must be treated less favourably on at least one of the nine specified grounds. The treatment the claimant received is not based on any of the nine grounds, nor is it different than any other staff member would have been subjected to in similar circumstances. It was irrelevant to the respondent that the claimant was on maternity leave, or is a woman, or that she is married or that she had just had a baby. A client request - that the claimant not return to work with them - within the services industry is an instruction that cannot be ignored, and in this case, was enshrined in the contract between the respondent and the sub-contractor. This contract was used to force the respondent into a situation where they had no choice. However, it should be noted that the respondent sought to have the claimant returned to the site, albeit with a performance improvement plan in place. However, the client refused. In this case the client was adamant that they did not want the claimant to return to work with them. Hence, the respondent offered alternative work in their head office - which was the only suitable work available at the time. Furthermore, they offered to accommodate the claimant in relation to starting and finishing times to facilitate her commuting. Every employee of the respondent company is subject to be moved from any of their sites at the request of the client and the claimant was no different.

CA-00018784-001 – Where a woman’s rights under any statutory provision are (allegedly) infringed, she can bring a complaint of discrimination under equality law. This includes entitlements under maternity law. Section 27 (2) of the Maternity Act provides that: ‘suitable alternative work’ extends to ‘… the terms or conditions of the contract relating to the place where the work under it is required to be done’. In line with legislative provisions and the impact of custom and practice on a contract of employment (n.b. the claimant had worked at the respondent’s client site in Swords for ~3.5 years), the decision to relocate her in the circumstances outlined may be adjudged to be discriminatory. Reliance on a contract with a client (which was not produced at hearing) does not enable an employer to circumvent his/her legal obligations. Furthermore, the respondent failed to produce evidence that it had attempted to source suitable alternative work. It is also relevant that at no time was the claimant advised as to any shortcomings in her work/behaviour. Nor was the allegation made by the client company – in respect of the claimant’s performance - substantiated in an appropriate manner. Notably, the respondent acknowledged that it had every intention of enabling the claimant to return to her post (in Swords) and it was agreed that the respondent would give the claimant an ‘excellent’ reference (for use in her job seeking pursuit). However, as a result of the respondent’s actions, the complainant has had no income over an extended period and has had to endure a range of deleterious consequences further to taking maternity leave.

CA-00018784-001 – The complaint is well founded and the complainant is awarded €11,602.50.

CA-00018784-002 - That the complainant is due payment for annual leave, as accumulated during her service.

CA-00018784-002 - That the complainant is due payment for annual leave, as accumulated during her service.

CA-00018784-002 – It was agreed by the parties that the complainant is due payment for annual leave, as accumulated during her service.

CA-00018784-002 – The claim is well founded and the complainant is awarded €994.50.

CA-00018784-003 - That the complainant is due payment for public holidays as accumulated during her service.

CA-00018784-003 - That the complainant is due payment for public holidays as accumulated during her service.

CA-00018784-003 - It was agreed by the parties that the complainant is due payment for public holidays as accumulated during her service.

CA-00018784-003 - The claim is well founded and the complainant is awarded €464.10.

CA-00018784-004 – In the event that the discriminatory dismissal claim is upheld, 2 weeks’ notice pertains.

CA-00018784-004 – In the event that the discriminatory dismissal claim is upheld, 2 weeks’ notice pertains.

CA-00018784-004 – Parties were in agreement that in the event that the discriminatory dismissal claim is upheld, 2 weeks’ notice pertains.

CA-00018784-004 – The claim is well founded and the complainant is awarded €928.20.

Discrimination – Holidays - Notice