Complainant

Respondent

Anonymised Parties

Financial Administrator

Telecommunications Provider

Representatives

Sarah Lea BL

Dermot Monaghan Solr.

Ursula Sherlock IBEC

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-00019550-001

01/06/2018

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

CA-00019550-002

01/06/2018

In brief, the facts here are that the Employee went out on her notified Maternity Leave expecting to return to her workplace and to her own particular position on the expiration of the protected leave. In her absence, major changes took place in the workplace such that when the Complainant came to notify her Employer that she was ready to return to the workplace, the work she had been doing was no longer available to her. Efforts were made to re-integrate the Employee back into workplace but the Employee was not happy to return in the circumstances proposed.

In consequence of the foregoing, the Complainant has remained out of the workplace on certified sick leave and a state of stalemate appears to have been reached.

The Maternity Protection Act of 1994 confers special rights on pregnant women which seek to protect their status in the workplace whilst at the same time recognising the need to confer entitlements which recognise the fact of pregnancy.

Section 8 of the Act notes that “a pregnant employee shall be entitled to leave known as maternity leave”.

Pursuant to Section 22, there is a recognition that an employee who is absent from the workplace by reason of being on maternity leave will be treated as if she had not been absent.

Section 26 of the Maternity Prtotection Act notes a general right to return to work on the expiration of the Maternity/Protective Leave –

Section 26.-(1) 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-

(a)with the employer with whom she was working immediately before the start of that period…

(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 under terms and conditions

(i) not less favourable than those that would have been applicable to the employee, and

If she had not been so absent from work.

The Act does recognises that circumstances might exist where a returning employee might be entitled to suitable alternative work –

Section 27.- (1)Where an employee is entitled to return to work in accordance with Section 26 but it is not reasonably practicable for the employer ....to permit the employee to return to work in accordance with that section , the employee shall be entitled to be offered by the employer suitable alternative work under a new Contract of employment.

(2) Work under a new Contract of Employment constitutes suitable alternative work for the purpose of this Act if

(a)the work required to be done under the contract is of a kind which is suitable in relation to the employee concerned and appropriate for the employee to do in the circumstances;

Where a dispute arises between the employee and employer under the Maternity Protection Act, it is open to the Adjudicating Officer to include such direction which may be considered necessary or expedient for the resolution of the dispute and may additionally make an award of compensation of up to 20 weeks’ remuneration (per section 32 of the said Act).

For the avoidance of doubt I understand that the Complainant’s complaint in respect of the Maternity Protection Act of 1994 is that the employer has breached that Act in not allowing the Complainant to return to work in the job which she held immediately before her maternity leave and in the event that that was genuinely not possible (and the Complainant contests this) then the employer further breached the Act by not offering suitable alternative employment.

In addition to the foregoing, the Complainant is also maintaining that her Employer discriminated against her contrary to the Employment Equality Act, 1998. I recognise that the Complainant must establish a Prima Facie case that she has been treated less favourably than another person is, has been or would be treated in a comparable situation on one of the recognised grounds of discrimination which in this instance is the “Gender Ground”.

Section 6(2A) of the Employment Equality Act, 1998 specifically recognises that discrimination on the gender ground shall be taken to occur where on a ground related to her pregnancy or maternity leave, a woman employee is treated, contrary to any statutory requirement, less favourably then another employee is, has been or would be treated.

The Complainant was represented on her first day of hearing and came without representation on the second day. Full submissions had been tendered on the first date and the Complainant herself gave comprehensive evidence in the course of the hearing at the second hearing.

The Respondent was represented at the hearing, and I was provided with comprehensive submission by the Respondent and I heard evidence from four of the witnesses who attended the hearing dates.

I have carefully considered the evidence adduced over the course of two days of hearing. The Complainant herein has worked with the Respondent since 2009. The Complainant worked as a Financial Administrator with the Respondent until 2017 at which time the Complainant was taking her first Maternity Leave due to commence in May 2017 with a return date in January 2018. The Complainant gave evidence that she was fulfilled in her job. As I understand it, the Complainant had the day to day running of the telecommunications antennae, masts and support structures for this telecommunications company. It is clear on the evidence, that the Complainant’s position was integral to the smooth running of up to 1,800 telecommunication mast sites and that she would have seen herself as the go-to person for all sorts of outside providers, users and support services who had an interest in the services available through the countrywide mast sites. Between rent, sub-lets, Licences and VAT there is no doubt that the Complainant was reconciling millions of euro every year. There is no question but the Complainant was excellent at her job, highly thought of and was answerable to the top level of management.

I do not doubt that in ordinary times the Employer herein seeks to ensure that employees returning from protected leave will do so in as seamless a manner as possible and I recognise that the Company Maternity Leave Policy seeks to give employees that very assurance. However, these were no ordinary times. It is common case between the parties that a period of flux had started in December of 2016 when a companywide announcement was made, and which explained that in the course of 2017 all employees (including the Complainant) who worked in a subsidiary company known as M would be re-absorbed into the Head Office building. The Complainant’s line Manager gave the Complainant assurances that her position as Finance Administrator would continue to exist and that the work would be carried out in the IT and Networks Finance Team reporting to MOC or GF.

Whilst out on Maternity Leave there were redundancies in M and I do not doubt a significant amount of movement and consultation had to take place in the process of amalgamating and blending the two staff bodies. In addition, I do accept the evidence that the Employer was obliged to have regard for the new accounting standards which had come into effect since January 2016 under the International Financial Reporting Standard 16 which provides for a much-needed transparency in relation to companies’ lease assets and liabilities. I accept that in focusing on the Complainant’s previously held position it became apparent to the financial team that the Complainant’s end to end role presented a corporate risk having regard to the need (per new standards) to segregate out tasks to allow for appropriate checks and balances. At some point along the way it was also deemed inappropriate that so much of the work which the Complainant had heretofore been carrying out, was being done without an appropriate level of Accountancy skill and qualification.

I do accept that the Complainant was not naïve enough to think that the changes affecting all of her work colleagues would not impact on her in some way too. By her own admission she knew there was some suggestion of splitting her role even prior to her departure though nothing concrete had ever been said to her. However, I also accept that the full extent of the diminution of her role was never formally explained to her. She was never told for example that she lacked qualifications and nor was she invited to partake in a programme to upskill herself. The Complainant was told that changes had meant that not only could she not do all of the work she had previously been doing, she could not do any part of it. She was advised that the majority of her work had all been taken on at Accounts and Projects and she was, in effect, not being invited to join either section. The Complainant was instead directed to move to an entirely new team, on a different floor, and under an entirely different Manager (Mr.S) to the one she had been advised she would be working with at the start of her Maternity Leave.

With some trepidation the Complainant did return to the workplace to meet with Mr. S in March of 2018 (having been out on certified sick leave). The Complainant had no complaint against Mr. S but it seemed clear to her that he had no real idea what he expected of her although I do think he was clearer when he gave evidence at the hearing. The Complainant only remained in the workplace for two days at that time. To her mind this was not her job and bore no resemblance to her job and did not amount to suitable alternative employment as it had nothing to do with the skill set she had crafted in nine years of employment.

On balance, I have to accept that the Complainant was not given a job description which would afford her any comfort. More generally, there seems to have been an attitude that the Complainant should be glad to have an assurance that she would be retaining her terms and conditions and that the nuts and bolts of her day to day work would be worked out over the course of time. Some of the correspondence tends to show that the Complainant – presumably as she was coming back from Maternity Leave – was a problem that needed to be solved. The Complainant gave very compelling evidence on how devastating the situation was for her. Heretofore, she saw herself as having purpose, being competent and possessing high-level interaction and integration. She gave evidence that she was returning to the workplace in a vacuum with no real job description, no direction and no clear career trajectory. It all seemed very transitory and dead-end to her. She gave evidence that many external clients and competitors saw her as the point of contact for all sorts of issues relating to this specific infrastructure and she feared that her removal without explanation would be misinterpreted as some sort of malfeasance on her part.

The Complainant linked this treatment and outcome to her unavoidable absence from the workplace and on balance I am inclined to accept this linkage. It seems to me that very little thought was given to the Complainant in her absence on what was a recognised protected leave. Her return to the workplace was met with a series of meetings and vague descriptions of what her employer now deemed acceptable employment for her. The Complainant at the time of issuing these proceedings still had no idea that her lack of Accounting qualification had been a factor nor that her replacement had moved to another position. The Complainant knows very little about the workplace now that she has been out for nearly a year.

I have to accept that the Complainant’s absence from the workplace mitigated against her ability to fight her corner and/or move and adapt with the changing times and there was no suggestion that other employees were as radically undermined by the process of change. In the circumstances she was treated less favourably than a person who remained in the workplace. The Complainant was therefore discriminated against by reason of taking her maternity leave and was therefore discriminated against on the gender ground. The facts outlined have therefore given rise to a presumed discrimination and the Prima Facie case is made out. Whilst I accept the employer may not have intended a discrimination that was the nett effect of their actions. The change in the regulations governing Corporate Finance does not of itself amount to a justification for no attempt being made to ensure that the Complainant be so comprehensively disadvantaged for having to be away from the workplace by reason of the birth and nurturing process. There is no comprehensive rebuttal to the Prima Facie case.

I would further accept that the employer failed to allow the Complainant return to the job she held immediately before the start of her maternity leave and nor was she offered suitable alternative work under a new Contract of Employment. There is no doubt in my mind that finding a suitable alternative employment should be the objective of this employer.

For the avoidance of doubt, I do not accept that a duality of claims has been maintained herein. The Complainant’s complaint form references distinct breaches of different Acts arising out of the one set of circumstances. These were all dealt with in the same forum (by way of submission and oral evidence) and therefore the rule in Henderson -v- Henderson does not apply. I would equally confirm that it would be unreasonable of me to decline to hear the Complainant’s case by reason of the lateness of her submission and I am satisfied that sufficient detail was raised in the Workplace Relations Complaint Form to allow the Respondent to know and understand the nature and scope of the complaint being made against it. Lastly, I am satisfied that time started to run on the allegations of breaches from the March date which means that her complaints were made well within time.

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 - CA-00019550-001 – I find the Complainant to have been unlawfully discriminated against and I award her €20,000.00

Complaint seeking adjudication by the Workplace Relations Commission under Section 30 and 31 of the Maternity Protection Act 1994- CA-00019550-002 – I find the complaint herein to be well founded and I award 10 week’s remuneration at €610.00 per week i.e. €6,100.00