ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00011576

Marketing Executive

v

Performances Arena

Complaints:

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-00015466-001	31/10/2017
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00015466-002	31/10/2017

Date of Adjudication Hearing: 20/08/2018

Workplace Relations Commission Adjudication Officer: Eugene Hanly

Procedure:

In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015 and Section 79 of the Employment Equality Acts, 1998 – 2015following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Background:

The Complainant was employed as an Interim Marketing Executive from 7th September 2015 to 30th June 2017. She was paid €654.00 per week. She has claimed that she was discriminated against in getting a job because she was pregnant and she as unfairly dismissed.

1)Employment Equality Act 19989 CA 15466-001

Summary of Complainant’s Case:

The Complainant worked for the Respondent as a marketing executive. The Complainant’s working relationship with the Respondent commenced on or about 7th September 2015 when she entered a contract with a recruitment company, which acted as employment agency for payroll purposes only, and commenced working directly for the Respondent. That contract, and subsequent contracts with the recruitment company are signed by the Head of Marketing and Communications with the Respondent, presumably acting as agent of the recruitment company. It terminated on or about 26th May 2017.

On 31st October 2017, a Workplace Relations Complaint Form was submitted on behalf of the Complainant alleging that the Respondent had discriminated against the Complainant (CA-00015466-001) and had unfairly dismissed the Complainant (CA-00015466-002).

The complaint cited 14th June 2017 as the most recent date of discrimination and cited 30th June 2017 as the date of dismissal, both of which dates are within six months prior to the submission of the Complaint Form. The complaint also cited 7th September 2015 as the date of commencement, which is more than a year prior to the date of dismissal. However, it is submitted below that 26th May 2017 is the Complainant’s effective date of dismissal, which date is also within six months prior to the submission of the Complaint Form.

The Complainant was employed by the Respondent on a succession of fixed term contracts, the fixed terms being cumulatively from 7th September 2015 to 30th June 2017. In or around December 2016, the Complainant informed the Respondent’s, Marketing and PR Manager, and Head of Marketing and Communications that she was pregnant and was due to give birth in June 2017. During the period from February 2017 to May 2017, the Head of Marketing and Communications repeatedly assured the Complainant that, although the Respondent could not give the Complainant a written guarantee, as an incumbent in the position, who was considered to be doing an excellent job and was highly thought of by CEO, she would get the permanent position once departmental approval was received. The Head of Marketing and Communications also told the Complainant that she would resign her position if the Complainant did not get the permanent position. After 4th May 2017, when the Respondent received departmental approval to make the Complainant’s position permanent, it commenced an advertisement and recruitment process. That process consisted of two rounds of interviews. On 11th May 2017 the Complainant received the job specification for the permanent position. On 18th May 2017 the Complainant submitted her CV and letter of application for the permanent position. On 29th May 2017, the Complainant commenced maternity leave, 26th May being her last day in work. It is submitted below that this amounted to the termination of the Complainant’s employment by the Respondent. The Complainant received no termination payment. By email dated 1st June 2017 the Complainant was invited to a second-round interview on 6th June 2017 and informed for the first time that she should prepare a ten-minute presentation for the interview. She had previously been informed that as the Respondent was familiar with the Complainant’s CV she would not be required to attend a first-round interview and would proceed directly to second-round interview. When so informed, during the last two weeks of May 2017, the Complainant repeatedly informed the Respondent that she was willing to attend a first-round interview and would prefer to be subject to the same interview procedure as the other candidates. The Complainant was initially told that she could skip the first round of interviews given that they were familiar with her CV. However, it transpired that the first-round consisted of interviews with the other candidates. The Complainant believes that those interviews took place on 31st May 2017. The decision that the Complainant would not attend a first-round interview was not communicated to her in writing and was not recorded in writing by the Respondent. On 6th June 2017 the Complainant attended the second-round interview with the Respondent CEO, Head of Marketing, Communications Marketing and PR Manager and an external PR and communications consultant. All members of the interview panel were aware that the Complainant was pregnant and due to give birth in three days’ time and acknowledged that fact. At the end of the interview and in the presence of the other members of the panel the external person stated that the Complainant was “disqualified for bringing an extra person to the interview.” At the end of the interview they informed the Complainant that the other second-round interviews would be taking place on 9th June, but that the Respondent had not wanted to schedule the Complainant’s interview on her due date. On 14th June 2017, the Complainant was informed by telephone that she would not be offered the permanent position.

At the time departmental approval to make the Complainant’s position permanent was received, the Respondent had been advertising a fixed term position to cover the Complainant’s impending maternity leave. The Respondent then changed the advertisement to a permanent position. It therefore became apparent to the Complainant that, as she had been assured she would get the permanent position and as no fixed term cover would be recruited, the Respondent would be without a marketing executive during her impending maternity leave. The Complainant asked Marketing and PR Manager how the Respondent would manage with such a temporary lack of a marketing executive, to which they responded that she did not know. The Marketing and PR Manager had previously while awaiting Departmental approval to recruit for a permanent position, told the Complainant that if the position came up shortly, it would mean that the Complainant would receive her salary during maternity leave.

The Respondent cannot show who made the decision that the Complainant would not attend a first-round interview, whether the decision was made by the full selection panel what the external member was told about that decision, whether the Complainant received scores for a first-round interview, and if so how such scores were calculated, whether the successful candidate received scores for both rounds. The Complainant is also unaware whether the other candidates were given any indication in their first-round interviews on 31st May 2017 what would be required in the second-round interview, giving them an unfair advantage in that interview. Furthermore, due to the heavily redacted nature of the copy of a document entitled “PUBLICATIONS AND PR EXECUTIVE 31.05.17” which appeared to list scores of all candidates, the Respondent cannot show what scores were received for what rounds of the recruitment process. The decision that the Complainant would not attend a first-round interview, which the Complainant protested against, alone constitutes pregnancy discrimination against her as she was clearly treated quite differently to the other candidates. The Complainant found the timeline of the interview process very unfair, particularly the fact that she was given only four days’ notice of the interview and was required to prepare a presentation over a bank holiday weekend. It is submitted that the matters set out above strongly suggest that the Respondent, on realising that the recruitment of the Complainant to the permanent position would, due to her pregnancy, leave it with a temporary lack of a marketing executive decided not to recruit her.

Discrimination

Notwithstanding the fact that the Complainant’s written contracts were with the recruitment company, it was an employment agency and, pursuant to section 2(5) of the Employment Equality Act 1998 and for the purpose of the discrimination complaint, the Respondent was the “provider of agency work” and is liable under that Act. The recruitment process run by the Respondent discriminated against the Complainant procedurally and substantively on the ground that she was pregnant. In relation to the burden of proof, section 85A(1) of Employment Equality Act 1998 provides that: “Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.” The test for determining whether the burden of proof has shifted to the employer is set out in Teresa Mitchell v. Southern Health Board [2001] ELR 201. The initial burden is on the complainant to establish, as a matter of probability, the primary facts upon which they rely. If those facts are proved to that standard, and if they are considered as having sufficient significance to raise a presumption of discrimination, then the burden of proving that the principle of equal treatment has not been infringed rests on the respondent. In Portroe Stevedores v. Nevins [2005] ELR 282, the Labour Court followed Barton v. Investec Henderson Crosthwaite Securities Ltd [2003] IRLR 332 (an English Employment Tribunal decision) where it was held that, since the facts necessary to prove an explanation would usually be in the possession of the respondent, it required “cogent evidence” from the employer to discharge that burden. This means that where an employer presents a series of unsatisfactory explanations or relies on a mere denial, a tribunal should be mindful that discrimination is “usually covert and often rooted in the subconscious of the discriminator.” This should be borne in mind when assessing any explanation which the Respondent attempts to offer for the treatment of the Complainant. In Dublin City University v. Horgan EDA0715/2007 the Labour Court referred to the above two cases and held that, once the burden has shifted: “Firstly, since the facts necessary to prove an explanation can only be in possession of the respondent, the Court should expect cogent evidence to discharge the burden of proof (See Barton v Investec Henderson Crosthwaithe Securities [2003] IRLR 332 and the decision of the Court of Appeal for England and Wales in Wang v Igen Ltd and Others [2005] ICR 931). Secondly, the requirement to establish that there was no discrimination whatsoever means that the Court must always be alert to the possibility of unconscious or inadvertent discrimination and real denials of a discriminatory motive, in the absence of independent corroboration, must be approached with caution. See Nevins Murphy Flood v Portroe Stevedores [2005] 16 ELR 282).

Finally, in Wang v Igen Limited and Others Peter Gibson L J considered the scope which should be ascribed to the notion of ‘no discrimination whatsoever’. He found that if the protective factor or characteristic was more than a ‘trivial inference’ in the impugned decision, a claim of discrimination will have been made out. That is a highly persuasive authority which the Court readily adopts.”

In relation to pregnancy discrimination in particular, in Healy v. Trailer Care Holdings Ltd EDA128 the Labour Court held that “in every case in which pregnancy related dismissal is in issue, the factual combination of the dismissal and the woman’s pregnancy must, in and of itself, place the onus of proving the absence of discrimination firmly on the Respondent.” Although it appears to be undisputed that the Respondent was aware of the Complainant’s pregnancy in this case, it is significant, and indicative of the strength of the presumption of discrimination, that there is no requirement that a complainant prove that their employer was actually aware of the pregnancy in order to raise that presumption. It is submitted that the facts set out above on behalf of the Complainant have sufficient significance to raise a presumption of discrimination. Therefore, in the event of the Respondent failing to show that there has been no discrimination the complaint herein must be upheld. Since the facts necessary to prove an explanation can only be in the possession of the Respondent, when the burden of proof shifts to a Respondent, the Court should expect cogent evidence to discharge the burden of proof (see Barton referred to above and the decision of the Court of Appeal for England and Wales in Wong v. Igen Ltd & Ors. IRLR 258).

By letter dated 6th September 2017 the Complainant made a data access request to the Respondent for all her personal data, including but not limited to the content of any personnel file or recruitment file, and each and every record and item of correspondence by which she could be directly or indirectly identified, including data stored in electronic form. By letter dated 15th September 2017, the Respondent sent to the Complainant a heavily redacted copy of a document entitled “PUBLICATIONS AND PR EXECUTIVE 31.05.17” which appeared to list the first-round interview scores of all candidates, including the Complainant, notwithstanding that she did not attend a first-round interview.

By letter dated 31st October 2017 the Complainant’s solicitors requested, pursuant to section 76 of the Employment Equality Act 1998, all information and documents relevant to the recruitment process, including but not limited to the following: Details of, and documents relevant to, why the Complainant was not offered the permanent position and why the successful candidate was. Details of, and documents relevant to, the particular procedure used in the recruitment process and why such a procedure was used, including if and why the procedure was varied in the case of certain candidates. Details of the interviewers at Round 1 of the interviews and the interviewers at Round 2 of the interviews. Also, details of the dates on which the other candidates were interviewed and notified about the presentation and other requirements for Round 2 of the interviews. Details of the duration of the various interviews and the reasons for this should also be given. An unredacted copy or a copy with only the candidates’ names redacted and replaced as “Candidate 1”, “Candidate 2”, etc, with their sex identified of the document titled “PUBLICATIONS AND PR EXECUTIVE 31.05.17” and already provided to the Complainant in heavily redacted form.

Copies of any notes taken or records kept by any party during the recruitment process, including during interviews and during any panel discussions.

Copies of any correspondence with the other candidates.

Copies of any relevant supporting documents or documents referred to in the above material.

The letter requested an explanation of any material in the above documents the meaning of which is not readily apparent and also warned the Respondent that the WRC would be asked to “draw such inferences as may be appropriate pursuant to section 81 of the Act if the above information is not provided”.

By letter dated 12th December 2017 the Respondent refused to provide the said material, and stated that the Complainant had “already been supplied with information relating to the recruitment process under Data Protection.” Section 81 of the Act provides that the WRC Adjudicator “may draw such inferences as seem appropriate from the failure to supply the information”. It is submitted that the following specific inferences arise: The only record of the recruitment process is the document entitled “PUBLICATIONS AND PR EXECUTIVE 31.05.17”. The Respondent did not make or did not retain any records of the interviews of the Complainant or the other candidates. The Respondent has no good reason why a different interview procedure was used in the case of the Complainant. The Respondent has no good reason why the Complainant was not offered the permanent position.

In South Eastern Health Board v. Burke EDA041, a case relating to discrimination in recruitment, the Labour Court observed that the failure to retain notes of a selection decisions rendered it “extremely difficult” for an employer to discharge the onus of proof placed upon it. Similar comments were made by the Labour Court in Gleeson v. Rotunda Hospital DEE003.

Without prejudice to the fact that it is for the Respondent to prove that the Complaint was not discriminated against, as set out above, it is further submitted that it is highly likely that the Complainant was the most qualified candidate for the permanent position for the following reasons: In her time working for the Respondent, there was not a single significant complaint about the Complainant and she received many emails from the CEO and other senior management praising her performance. The Complainant gave an excellent presentation in her interview, which, as required, demonstrated a detailed first-hand knowledge of the challenges facing the Respondent. The Complainant was extremely well qualified for the permanent position, having an undergraduate degree, two masters’ degrees, and five years’ experience working in communications. On many occasions the Labour Court has found prima facie evidence of discrimination in recruitment cases where a complainant’s qualifications or experience were considered superior to other candidates, for example, in Gleeson v. Rotunda Hospital DEE003. The Complainant reserves the right to object at the hearing of the complaints to the Respondent relying on any documents not already disclosed. The Complainant also reserves the right to make a complaint to the Data Protection Commissioner if necessary.

Compensation for discrimination

Section 82(4) of the Act (as amended) states:

“The maximum amount which may be ordered by the Director General by way of compensation under subsection (1)(c) or (1)(f) shall be—

(a) in any case where the complainant was in receipt of remuneration at the date of the reference of the case, or if it was earlier, the date of dismissal, an amount equal to the greatest of—

(i) 104 times the amount of that remuneration, determined on a weekly basis,

(ii) 104 times the amount, determined on a weekly basis, which the complainant would have received at that date but for the act of discrimination or victimisation concerned, or

(iii) €40,000 or (b) in any other case, €13,000.”

“Date of dismissal” is not defined in the Employment Equality Act 1998. However, section 1 of the Unfair Dismissals Act 1977 provides: “‘date of dismissal” means—

(a) where prior notice of the termination of the contract of employment is given and it complies with the provisions of that contract and of the Minimum Notice and Terms of Employment Act, 1973, the date on which that notice expires.

(c) where a contract of employment for a fixed term expires without its being renewed under the same contract… the date of the expiry…”

It is submitted that, given that the Complainant’s contract did not provide for maternity pay and the Complainant did not receive any such pay and would have expired during the Complainant’s maternity leave such that the Complainant’s last day of work under the contract was always going to be 26th May 2017, and given that the Complainant, by giving notice of her pregnancy and her intention to take maternity leave effectively gave “prior notice of the termination of the contract of employment” and that 26th May 2016 should be considered to be the “date of dismissal” for the purpose of section 82(4)(a) of the Employment Equality Act.

The Complainant was paid on 1st June 2017, and was paid outstanding holiday pay on 3rd August 2017. As the Complainant was in receipt of remuneration from the Respondent at that effective date of dismissal 26th May 2017, the compensation to which she is entitled is limited only by paragraph (a) of section 82(4) of the Employment Equality Act 1998 (as amended), not by paragraph (b) thereof. Section 82(4)(a) limits such compensation to the greater of two years’ remuneration or €40,000. In the Complainant’s case that limit is €68,000. Without prejudice to the foregoing, the Complainant received remuneration in the form of holiday pay after the later date of dismissal referred to in the complaint for (30th June 2017) and therefore paragraph (a) applies in any case.

In Fox v. Lee & Anor EED036 the Labour Court held that, in measuring the appropriate quantum of compensation, regard must be had to all the effects which flowed from the discrimination which occurred, including “not only the financial loss suffered by the complainant arising from the discrimination but also the distress and indignity which she suffered in consequence thereof, including the effects of bringing these proceedings”.

The Adjudication Officer is also obliged to follow the decision of the Court of Justice of the European Union in Von Colson v. Land Nordrhein-Westfalen [1984] ECR 1891 which held that the sanction for breaches of Community rights must be effective, proportionate and dissuasive. This means that the compensation awarded must fully compensate the Complainant for the economic loss and for the physical, mental and/or emotional distress which she sustained as a result of the breach her rights. It must also contain an element that reflects the gravity of the infringement and acts as a disincentive against future infractions.

As a direct result of the Respondent’s discrimination, the Complainant has been worried that she should remove her wedding ring for interviews for potential jobs, particularly given the ongoing gap in her CV since June 2017. It is submitted that the facts of this case justify an award close to the maximum limit, to ensure a dissuasive response such that the denial of employment equality rights to pregnant women is not tolerated.

Publication of decision

Section 89(1) of the Employment Equality Act 1998, (as amended by sections 83(1)(c)(ii) and 83(1)(h) of the Workplace Relations Act 2015) gives the Adjudication Officer discretion as to how a decision on discrimination is to be published. In the event that there is a finding that the Respondent discriminated against the Complainant, it is submitted that such decision should be published with the Respondent fully identified to meet the requirements of constitutional justice, and the requirement of Von Colson that the sanction for breaches of Community rights must be effective, proportionate and dissuasive, as set out above.

Summary of Respondent’s Case:

The claim relates to an agency worker of a recruitment company placed with the Respondent, of alleged discrimination on the grounds of gender and family status. The Complainant also alleges that she was unfairly dismissed from her role. The details of the complainant’s claims are set out in her submission dated the 16 March 2018. Accordingly, this submission by the respondent addresses the allegations as detailed in the document of 16 March 2018 and in the complaint form, received by the WRC on 31 October 2017.

Notwithstanding the respondent’s rejection of these allegations which will be detailed later, the respondent contends that the complainant has not discharged a prima facie case under the Employment Equality Acts 1998 to 2008 as is required. Accordingly, the respondent respectfully asks that the claims be dismissed.

The complainant was employed by a recruitment company on 4 successive fixed term contracts in the position of Interim Marketing Executive placed with the Respondent. This was an unsanctioned post that was performed by agency workers since August 2014 due to the increasing demands and workload in the respondent’s marketing department. The complainant commenced her placement on 7 September 2015 covering the maternity leave of an agency worker. However, this person did not return to the role and the complainant was engaged by the respondent until 30 June 2017, with her last day worked being the 26 May due to the commencement of the complainant’s maternity leave.

The requirement for the position of Interim Marketing Executive ceased upon the appointment of a permanent PR and Publications Executive, following the post being sanctioned by the Department of Culture, Heritage and the Gaeltacht on 4 May 2015. As with all public service appointments, this role was required to be advertised by open competition. This was communicated to the complainant on several occasions and by the Head of Personnel and Operations on 5 May 2017. Subsequently, the Complainant’s role of Interim Marketing Executive came to a natural expiry on 30 June 2017. The permanent position of PR and Publications Executive was advertised internally and externally in line with the Respondent’s recruitment and selection policy. The calibre of applicants for the role was extremely high as this was a full-time, permanent and pensionable post in the public service.

The complainant applied for the position and participated in the recruitment process and on 6 June 2017 attended a second-round interview. The panel comprised of CEO, Head of Marketing & Communications, Marketing & PR Manager and included an external consultant, The Complainant was unsuccessful in her application and was informed of this on 14 June 2017. An external candidate was appointed into the PR and Publications Executive role commencing on 1 August 2017.

Discrimination

The Complainant alleges that she was discriminated against by the respondent on the basis of Gender and Family Status. She claims that the respondent discriminated against her procedurally and substantively on the ground that she was pregnant. It is not in dispute that the respondent was aware that the complainant was pregnant at the time of the recruitment process. The respondent refutes the allegation that it discriminated against the Complainant as stated. The respondent carried out a fair and transparent recruitment process in line with their recruitment and selection policy and the job advertisement which sets out the respondent’s commitment to equal opportunities. The Employment Equality Act, 1998, defines the term ‘gender’, ‘family status’ and what is meant by the term ‘discrimination’.

Section 6(2) of the Employment Equality Acts 1998 to 2011 states that “As between any two persons, the discriminatory grounds and the descriptions of those grounds for the purposes of this Act are that one is a woman and the other is a man in this act referred to as the “gender ground”(c) that one has family status and the other does not in this act referred to as “the family status ground”)

Direct discrimination is defined as occurring where one person is treated less favourably then another is, has been or would be treated and that person is of a different race, gender, marital status, family status, sexual orientation, religious belief, age, disability or membership of the traveling community. Direct discrimination consists of two elements. The first is the less favourable treatment of the individual making the complaint; the second is the existence of discriminatory grounds for that treatment. Both elements must be satisfied for a claim of discrimination to succeed. Indirect discrimination is deemed to occur where an apparently neutral provision puts persons at a particular disadvantage compared with other employees based on one of the nine grounds covered by the Acts. There is no evidence to show that the complainant has been indirectly discriminated against.

Prima Facie Case

It has been the well-established practice of the Equality Tribunal and the Labour Court to require a complainant to present, in the first instance, facts from which it can be inferred that he or she was treated less favourably than another person is, has or would be treated, on the basis of the discriminatory ground cited. It is only when he/she has discharged this burden to the satisfaction of an Equality Officer that the burden shifts to the respondent to rebut the inference of discrimination raised. The Labour Court has stated that its jurisprudence in this matter stems from the Court’s analysis in Southern Health Board v Mitchell, DEE011, [2001] ELR 201, where the Court stated: “The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if those primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment”.

In Margetts v Graham Anthony & Company Limited, EDA038, the evidential burden which must be discharged by the complainant before a prima facie case of discrimination can be said to have been established was further outlined by the Labour Court. The Labour Court stated as follows: “The mere fact that the complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.”

The respondent submits that in her initial complaint to the Workplace Relations Commission on 31 October 2017 and her submission of 16 March 2018, the complainant has failed to discharge this evidential burden and consequently, this claim under the Employment Equality Acts 1998 to 2011 must fail.

Notwithstanding and without prejudice to the above, the respondent denies the complainant discriminated against the employee during the recruitment process as she was pregnant. The recruitment process was clear, objective and transparent. In support of this the respondent would reference the following pertinent facts:

The recruitment process was conducted in accordance with the respondent’s recruitment and selection policy. This policy sets out the respondent’s commitment to be an equal opportunities employer and to recruit individuals based on their qualifications for the job.

The internal and external recruitment and promotional material confirmed the organisations commitment to equal opportunity.

The job description and person specification were furnished to all candidates in advance. The job description and person specification were used to establish short-listing and interview criteria and all candidates were scored against these criteria. These criteria are objective, fair and relevant to the post.

The interview panel was gender balanced with two women and two men and was experienced and appropriately qualified to assess the most meritorious candidate for the role. The panel also consisted of an external interviewer who was selected as he has considerable experience in the industry.

4 candidates were shortlisted for the second-round interview. Candidates were given the brief in advance of the interview for a presentation they were required to deliver. This brief was chosen as it closely aligned to the type of task that a PR and Publications Executive would be expected to perform.

The process was fully transparent. The complainant was furnished with a detailed breakdown of the marks received and the interview assessment sheet for the interview.

The Respondent’s commitment to gender equality in the recruitment process is pertinent from the fact that over the last 7 years prior to the most recent recruitment process, out of a total of fourteen appointments with the Respondent this comprised of 7 women and 7 men.

The complainant was not required to attend the first-round interview as this was for the purpose of reviewing the applicants’ CV’s. As the claimant had worked with the respondent through an agency for approx. 21 months they were familiar with her CV and she was informed that on that basis she would automatically progress to the second stage. This is common practice in many organisations. Four candidates were invited to the second-round interview (3 women including the complainant and 1 man). The respondent confirms that the other candidates who attended the first-round interview on the 31 May 2017 were not given any indication of what was required in the second-round interview. All four candidates were provided with information regarding the second-round interview by email on 1 June and were given a brief for a presentation they were required to deliver (appendix 8). These interviews were scheduled for all candidates on 6 June (appendix 9). Two applicants withdrew from the recruitment process at this stage as they had accepted positions elsewhere. The complainant confirmed she was available to attend for interview at the date and time specified. The successful candidate was unable to attend on this date due to work commitments and this was rearranged for the 8 June taking into account the availability of the interview panel.

The respondent has later discovered interview notes written by two interviewers in a personal notebook on the day of the interview (appendix 10). These were not included in her personnel file and as such were overlooked for the request. The notes clearly show the difference between the two applicants and that the successful applicant had an excellent awareness of the brand and was an excellent communicator. By contrast, it was noted that the complainant’s presentation was light on detail and that she failed to look at PR opportunities or branding. No transcripts were taken by the other members of the interview panel for any of the applicants.

The respondent would cite Co Louth VEC v Don Johnson, EDA0712, in support of its position that the mere fact that a transcript of the interview was not kept does not amount to discriminatory treatment. In that case, the Labour Court noted:

“…[T]he Respondent submitted a detailed list of the criteria used in the selection process, agreed breakdown of the marking system applicable to each of the criteria, ranking of marks according to a scale from “Fair, Good, Very Good or Excellent”. Details of the marks awarded under each of the headings for each candidate was submitted. Evidence was given to the Court that the Interview Board did not take any contemporaneous notes during the interview.”

The Court went on to find, on this point, that “[t]aking account of all these above points the Court cannot find fault with the record keeping in this competition or in the decision-making process on the marks awarded.”

The Respondent has submitted similar evidence to the respondent in Co Louth VEC v Don Johnson. It is submitted that the respondent’s record keeping was sufficient and request that a similar view of its processes is taken as was applied by the Labour Court in that case.

The respondent rejects the complainant’s assertion that she was the most qualified candidate for the role. The successful candidate was selected for the role ahead of the Complainant based on his performance at interview as measured by the objective interview criteria. The Complainant’s pregnancy did not play any role in the assessment.

Comparing the Complainant’s score to the successful candidate, the marks allocated were as follows:

Complainant Successful Candidate

Experience 20/25 20/25

Qualifications 10/10 10/10

Understanding of Sector 16/20 18/20

Communication 12/20 18/20

Task 15/25 23/25

Total 73/100 89/100

Evidence can be furnished from the interview panel in relation to the precise detail of the above. However, the rationale from the panel for the marks awarded will be addressed.

In relation to Experience and Qualifications, both candidates received full marks on these criteria as they both exceeded the requirements set out in the person specification. Regarding displaying an understanding of the sector, the successful candidate demonstrated a superior knowledge at the interview, in accordance with the scoring sheet from the panel warranting his higher score. The successful candidate also proved to be an excellent communicator at interview, and provided evidence of his communication experience which justified his higher score on this criterion. The successful candidate had considerable experience in the communications industry at a senior level and working on international client accounts. His array of experience was very evident by the presentation that he delivered on the day of the interview which was clear, concise and focused on the PR and marketing opportunities for the Respondent.

As can be clearly seen from the above marks, the area which most notably separated these two candidates was the task they were required to present on the day of the interview, details supplied. The task required the candidates to deliver a presentation to the panel on the following:

Connect 3 events in the current Respondent schedule of events during July/August period and

Write a short narrative to develop a theme linking the 3 events
Outline your target audience
Outline your press plan
Prepare a press release
Outline a marketing activity plan working with a budget of €10k

It was noted on the marking sheet by the panel thatthe successful candidate delivered “an outstanding presentation, well researched with an excellent theme linking the 3 events; on brand message; outstanding PR; strong marketing plan focused on target audience. [He] was well prepared for the interview dealing with all questions in a very detailed way which highlighted the level of experience he was bringing to the role. Unanimous decision from the panel given his understanding of the challenges facing the Repondent, his understanding of the sector and his interest and music ability.”

By contrast, it was noted by the panel that the complainant’s presentation “lacked ideas, limited consideration of both brand positioning and digital opportunities; failed to consider the wider opportunities for PR/ marketing. The substantial difference between the two presentations is clear from reviewing the documents themselves and the members of the interview panel can provide further details on same.

The Complainant acknowledges that at the end of the interview the external consultant, made a remark to the Complainant that she should be “disqualified for bringing an extra person to the interview”. The comment was made in a jovial manner following other informal discussions at the end of the interview and the complainant was wished all the best. The comment was made at the end of the interview and as such it was clear that it did not play any role in the scoring of the interview. In addition, as the comment was made when the interview had ended it would not have had any impact on the complainant’s performance at interview.

The Respondent refutes that the Complainant was subject to any discriminatory treatment as a result of her pregnancy or that it had any impact on the recruitment process. It is noted in the Complainant’s submission (no. 19) that prior to the respondent receiving departmental approval for the permanent post of PR and Publications Executive, the Respondent advertised for a fixed term contract to cover the claimant’s maternity leave. However, in the meantime as departmental approval was received this was withdrawn and replaced with an advertisement for a permanent PR and Publications Executive role, for which the complainant applied. It is also noteworthy that the CEO provided a very positive and complimentary reference for the complainant on 23 August 2017.

Compensation for discrimination

Without prejudice to the above, the respondent also notes that as the Complainant was an agency worker, and not an employee of the respondent that any award made should be limited to a maximum of €13,000 in line with an access to employment claim as per the Employment Equality Act 1998-2015.

Findings and Conclusions:

1)Employer

I note the conflict of evidence in this matter.

It is the Complainant’s position that she was de facto an employee of the Respondent. She was interviewed by the Respondent, on their premises. The contract was signed by the Respondent. It was only after she was offered the job was she told that she would be paid via the agency.

It is the Respondent’s position was that she was recruited through an agency as an Interim Marketing Executive. Her contract was with the agency and she as paid by the agency. They stated that they did not have approval for the permanent appointment of Marketing Executive and so hired an agency worker to cope with the increasing demands of the business.

I find that the Respondent was not in a position to recruit directly a Marketing Executive.

I find that they hired an agency worker to fill that interim role. Therefore, I have decided that the Complainant was not a direct employee of the Respondent but rather an agency worker.

I find that according to Sec 8(2) of the Employment Equality Act states: For the purposes of this Act, neither an employer nor a provider of agency work shall be taken to discriminate against an agency worker.

Therefore, the Complainant may take a claim against the named Respondent.

2)Guaranteed the Post

I find that the Complainant was hired as an Interim Marketing Executive because the Respondent had not approval to make a permanent appointment.

I note that it is the Complainant’s position that she was guaranteed this position while she was working as an Interim Executive.

I note that the Respondent stated that they were satisfied with her work and they were anxious that she applies and that she should be successful

I find that the Respondent did not have the authority to make any such promise of a permanent post.

I find that once the position had received approval they were obliged to go through the Public Appointment Service selection process.

I find that the person attributed to have made that guarantee was not the ultimate decision maker and could not have made such a promise with authority.

I note the conflict of evidence. However, on the balance of probability I find that the Complainant was not formally guaranteed the job.

3) 1st Interviews

a) Initial screening

I note that the Complainant was not required to take part in the initial screening interviews.

I note that the Complainant wanted to be treated the same as external candidates and to take part in the 1st interviews.

I note that the Respondent stated that the initial interviews were for screening purposes. She was not required to take part as she was already well known to them.

I find that this is a most common approach taken with internal and external candidates.

I find that it made common sense not to put her through an initial screening when they already knew her.

I did not find anything untoward with the Complainant not taking part in the 1st interviews.

I have dealt with the scoring issue under c) below.

b) Discrimination

I note that she has alleged that by not taking part she was discriminated against.

I note that the Respondent stated that the initial interviews were for screening purposes only. She was not required to take part as she was already well known to them.

I find that it made common sense not to put her through an initial screening when they already knew her.

I did not find that this was a discriminatory action.

c) Scoring

I note that the Complainant stated that she was aware from the score sheets received from the Respondent that candidates were scored at the first interviews. She was unaware whether those scores were added to scores from the second interview to arrive at a result, and if so then she was at a disadvantage.

I note that the Respondent witnesses who were on the panel for the 2nd interviews assured the hearing that no scores from the 1st interview were considered. In fact, they stated that they were not aware of any scores from the first interview. They stated that the decision to select the candidate was based solely on the second interview.

I note the conflict of evidence. I have decided on the balance of probability that the selection decision was based solely on the second interviews.

2nd Interviews

a) Presentation

I find that the Complainant did not raise any objection with the time allocated to prepare the presentation.

I did not find any evidence that the Complainant was treated less favourably with the time allocated to prepare the presentation.

b) Advanced pregnancy

I note that the Complainant was scheduled to attend the second interview some three days before her maternity leave commenced.

I note that she did not raise any issue with the impact of her pregnancy on her ability to take part in the selection process.

c) Actual scoring

Criteria Complainant Successful Candidate

Experience 20/25 20/25

Qualifications 10/10 10/10

Understanding of Venue/Sector 16/20 18/20

Communication 12/20 18/20

Task 15/25 23/25

Total 73/100 89/100

I note that the scoring was very even for the first three criteria, Experience, Qualifications, Understanding of Venue/Sector

I note that there was a significant difference in the scoring on Communication and Task.

I note that the Respondent confirmed that they were “blown away” by the successful candidate’s performance and that there was a quite a gulf between the Complainant and the successful candidate.

I note that they stated that the successful candidate is still employed with them and performing to a very high standard.

I note that the Labour Court in case EDA077 stated “However the qualifications or criteria which are to be expected of candidates is a matter for the employer in every case. Provided the chosen criteria are not indirectly discriminatory on any of the proscribed grounds, it is not for the Court to express a view as to their appropriateness. It is only if the chosen criteria are applied inconsistently as between candidates for an unsuccessful candidate is clearly better qualified against the chosen criteria that an inference of discrimination could arise”.

In this case I find that the criteria selected could not be deemed to be indirectly discriminatory. Nor did I find any evidence that they were applied inconsistently.

I note that in the The Labour Court case EDA 1322 it stated, “it accepts on the evidence that the selection board took account of these factors in assessing candidates under each of the criterion which it used in the assessment of candidates. Each of the witnesses who gave evidence on behalf of the Respondent told the Court how they assessed experience and the other mandatory factors in making their decision under each of the criterion used in the competition. They also told the Court why they attached greater weight to the experience of the successful candidate over that of the Complainant. The Court accepts the veracity of the evidence tendered by these witnesses. It is satisfied that experience was taken into account in the competition but the weight to be ascribed to that consideration is a matter for the selection board. It is not a matter for this Court to substitute its views on the appropriate weighting for that of the designated decision makers.

In this case I find the witnesses credible in the allocation of scoring marks to each of the candidates.

d) Alleged comments by a panel member

I note that the Complainant alleged that the external panel member made a derogatory / discriminatory comment at the conclusion of the interview.

I note that this panel member emphatically denied making such a comment.

I note that the other members of the panel stated that they had no recollection of hearing it.

I note that the Complainant stated that she immediately ‘phoned her husband and referred to it.

I note that the Complainant did not refer to this alleged incident to her colleague who was on the panel as they walked away from the interview.

I note that the Complainant did not raise this alleged incident in the immediate aftermath of the interview.

I did not find any convincing evidence of the occurrence this alleged incident.

Having regard to all the circumstances I cannot accept that the Complainant’s failure to attain the position is a fact from which discrimination on the grounds of pregnancy could be inferred.

Decision:

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.

For the above stated reasons, I have decided that this complaint should fail.

Key Words:

Discrimination on grounds of gender, family status, in getting a job, promotion

2)Unfair Dismissals Act 1977 CA 15466-002

Summary of Complainant’s Case:

Notwithstanding the fact that the Complainant’s written contracts were with a recruitment company, it was an employment agency and, pursuant to section 13 of the Unfair Dismissals (Amendment) Act 1993 and for the purpose of the unfair dismissal complaint, the Respondent was the employer and is liable under that Act.

Section 1 of the Unfair Dismissals Act 1977 (as amended) provides that: “‘dismissal’, in relation to an employee, means— the expiration of a contract of employment for a fixed term without its being renewed under the same contract”

Section 6(1) of the Unfair Dismissals Act 1977 (as amended) provides that a dismissal will be judged to be unfair, unless having regard for all the circumstances, there were substantial grounds justifying the dismissal.

This is followed by section 6(6): “In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.”

And by section 6(7):

“Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so—

(a) To the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and

(b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14(1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7 (2) of this Act.”

The effective termination of the Complainant’s employment on 26th May 2017 (or alternatively on 14th June 2017) was a unilateral termination and was not justified or in accordance with any procedure whatsoever, and the Respondent cannot rely on the defences permitted in section 6(4) or on any other “substantial grounds”.

Section 2(2)(b) of the Unfair Dismissals Act 1977 effectively requires (by allowing only ones that meet the requirements be terminated at the expiry of the term) that all fixed term contracts must be “in writing, signed by or on behalf of the employer and by the employee and [provide] that this Act shall not apply to a dismissal consisting only of the expiry or cesser aforesaid.”

None of the said contracts contained a written statement providing that the Unfair Dismissals Act 1977 would not apply to a dismissal consisting only of the expiry of the contract, so the exclusion in section 2(2)(b) of that Act does not apply.

Dismissal during pregnancy or maternity leave

Section 23 of the Maternity Protection Act 1994 provides that any purported termination, notice of termination or suspension of employment while an employee is on maternity-related leave, will be void.

Section 6 of the Unfair Dismissals Act 1977 provides that the dismissal of an employee is deemed to be automatically unfair if it results wholly or mainly from the employee’s pregnancy or maternity leave.

Furthermore, Article 10 of the Pregnancy Directive (92/85/EEC) provides that pregnant employees cannot be dismissed during the period from the beginning of their pregnancy to the end of their maternity leave, save in exceptional circumstances not connected with their condition. If such an employee is dismissed in that period, they must be provided with “duly substantiated” grounds in writing. In Jiménez Melgar v. Ayuntamiento De Los Barrio (Case C-438/99), the European Court of Justice held that Article 10 enjoys direct effect and also found that the prohibition on dismissal also applies to fixed-term contracts.

In Dollymount Creche v. Finnerty EED034 the Labour Court held that: “…there is an abundance of authority for the proposition that women who are pregnant are to be afforded special protection in employment and cannot be dismissed save in exceptional circumstances unrelated to their pregnancy, and that such dismissals amount to discrimination on the ground of gender.”

Loss and remedy for unfair dismissal

The Complainant’s weekly pay was approximately €653.85. Had the Complainant’s employment not been terminated, she would likely have returned after 26 weeks of maternity leave, i.e. on 27th November 2017. The Complainant has not commenced alternative employment and therefore has to date suffered a loss of approximately eight weeks’ pay, being €5,230.80. This loss may continue into the future. The Complainant has actively attempted to mitigate her loss by applying for jobs. The Complainant has since reluctantly applied for Jobseeker’s Benefit, although it is noted that section 7(2A) of the Unfair Dismissals Act 1977 provides that social welfare payments following a dismissal shall be disregarded in calculating a complainant's financial loss. Furthermore, the termination of the Complainant’s employment has seriously adversely affected her and her husband’s ability to get mortgage finance. The Complainant and her husband had mortgage approval prior to the termination, but the amount of that approval is now substantially less and she believes it is unlikely that she and her husband will be able to purchase a home in the near future.

Matters arising from the Respondent’s additional statement

Identity of employer

The Respondent continues to claim that the Complainant was employed by a recruitment company. This claim was comprehensively rebutted by the Complainant at the hearing on 20th August 2018, specifically by the operation of section 13 of the Unfair Dismissals (Amendment) Act 1993 as referred to in paragraph 55 of the statement dated 16th March 2018. 6. Furthermore, and without prejudice to the foregoing section which applies regardless, it is clear from the evidence of both parties that the Complainant was not recruited or “placed” by a recruitment company, but that the Respondent directly advertised the position, conducted the selection process, and informed the Complainant that she was successful in her application. The Complainant has never met anyone from the recruitment company or attended at their offices the contract was signed by the Head of marketing & Communications. It was only when the position was offered to the Complainant that she was informed that she would be paid by a recruitment company. The Respondent conceded at the hearing that this arrangement with a recruitment company was solely to avoid the restrictions of the moratorium on public service recruitment.

Fact of dismissal

The Respondent also claims that the Complainant’s contract terminated by the effluxion of time and not by unfair dismissal. In this regard the Complainant relies on section 1 of the Unfair Dismissals Act 1977 as set out below.

Protection during maternity

The Respondent relies on section 10(2) of the Maternity Protection Act 1994 to the effect that the protection afforded an employee under a fixed-term contract comes to an end upon the determination of the term of the fixed-term contract. That subsection states:

(2) Where an employee is employed under a contract for a fixed term and that term expires before the day which, apart from this subsection, would be the last day of her maternity leave, then— (a) notwithstanding any other provision in this Part, the last day of her maternity leave shall be the day on which the term expires; and (b) nothing in this Part shall affect the termination of the employee's contract of employment on that day.

Therefore, paragraph (a) of that subsection simply provides that the day on which the term expires is a day in the employee’s maternity leave, i.e. they are on maternity leave when they are dismissed. Paragraph (b) of that subsection provides that it shall not affect the termination of the employee’s employment. This does not alter the operation of section 1 of the Unfair Dismissals Act 1977, which deems such termination to be a dismissal.

Melgar decision

The Respondent relies on paragraphs 45 and 47 of the decision in Jiménez Melgar v. Ayuntamiento De Los Barrio (Case C-438/99). The ECJ’s comment that non-renewal of a fixed-term contract does not amount to a dismissal, means that such a non-renewal does not automatically amount to a dismissal for the purpose of the Pregnancy Directive. “cannot be regarded as a dismissal prohibited by that provision.”. This, does not alter the operation of section 1 of the Unfair Dismissals Act 1977 in respect of domestic unfair dismissal legislation.

Unfair dismissal law ,Applicability of legislation

Section 2(2)(b) of the Unfair Dismissals Act 1977 effectively requires by allowing only ones that meet the requirements be terminated at the expiry of the term that all fixed term contracts must be “in writing, signed by or on behalf of the employer and by the employee and [provide] that this Act shall not apply to a dismissal consisting only of the expiry or cesser aforesaid.” None of the said contracts contained a written statement providing that the Unfair Dismissals Act 1977 would not apply to a dismissal consisting only of the expiry of the contract, so the exclusion in section 2(2)(b) of that Act does not apply. This is a statutory requirement and the adjudication officer has no jurisdiction to ignore or waive this requirement, therefore the provisions of the unfair dismissal legislation apply to this case. Redmond on Dismissal Law states that the “formula is straightforward and must be followed.” Ryan, Desmond, Redmond on Dismissal Law, 3rd ed, Bloomsbury Professional, 2017, paragraph 23.76

Dismissal

Once it is established that the legislation applies, the starting point is whether the Complainant was dismissed. Section 1 of the Unfair Dismissals Act 1977 (as amended) provides that:

“‘dismissal’, in relation to an employee, means—...

(c) the expiration of a contract of employment for a fixed term without its being renewed under the same contract” “‘date of dismissal” means—

(c) where a contract of employment for a fixed term expires without its being renewed under the same contract… the date of the expiry…”

Therefore, the Complainant was, for the purpose of the unfair dismissal legislation, dismissed on 30th June 2018.

Unfairness

16. Section 6(1) of the Unfair Dismissals Act 1977 (as amended) provides that a dismissal will be judged to be unfair, unless having regard for all the circumstances, there were substantial grounds justifying the dismissal.

17. This is followed by section 6(7): “Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so—

(a) To the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and

18. The Respondent must show that the dismissal was fair. The termination of the Complainant’s employment was a unilateral termination and was not justified or in accordance with any procedure whatsoever, and the Respondent cannot rely on the defences permitted in section 6(4) or on any other “substantial grounds”.

Dismissal during pregnancy or maternity leave

“If a worker, within the meaning of Article 2, is dismissed during the period referred to in point 1, the employer must cite duly substantiated grounds for her dismissal in writing”.

22. The Respondent cannot rely on the Complainant’s contract as either notice of or substantiated grounds for her dismissal – the contracts make no reference to duration, termination or expiry, or to notice to the employee of any of the foregoing, but merely specify, under the heading “Commencement”, a range of dates for the commencement of the contracts.

Unfairness related to pregnancy

The Complainant submits, for the reasons and evidence set out at the hearing, including the matters which arose in the discrimination complaint, that her dismissal (being the combined non-renewal of the fixed-term contract and the failure to offer her the permanent position) was related to her pregnancy.

Unfairness generally

Notwithstanding the foregoing, the Complainant submits that, regardless of any matters relating to discrimination, her dismissal (being a dismissal in domestic unfair dismissal legislation by the operation of section 1 of the Unfair Dismissals Act 1977) was unfair for the following reasons, which were established by uncontradicted evidence at the hearing on 20th July 2018: a. The Complainant was never specifically informed, in writing or otherwise (including in the phone call in which she was informed that she was unsuccessful in her application for the permanent position), that her fixed-term contract would not be renewed, despite it having been renewed three times previously, contrary to fundamental fairness. b. The non-renewal occurred while she was on maternity leave, contrary to section 23 of the Maternity Protection Act 1994, and without any consultation with her about such non-renewal. c. She was never provided with duly substantiated written grounds for the non-renewal, contrary to Article 10 of the Pregnancy Directive.

Given the broad nature of the question of fairness in dismissals, and the above facts, the Respondent has not met its burden of proving that the dismissal was, in all the circumstances, fair.

In Jiménez Melgar v. Ayuntamiento De Los Barrio (Case C-438/99), the European Court of Justice held that Article 10 enjoys direct effect and also found that the prohibition on dismissal also applies to fixed-term contracts. It is accepted that the court went on to hold that “non-renewal of [a fixed-term] contract, when it comes to the end as stipulated, cannot be regarded as a dismissal prohibited by that provision.” However, this does not preclude the Complainant’s unfair dismissal claim and the Respondent must still prove that the dismissal was, in all the circumstances, fair. It is submitted that the requirements of the Pregnancy Directive are relevant to that general question of fairness, in particular the requirement for “duly substantiated grounds for… dismissal in writing”. The only decisions of Irish employment law tribunals which refer to the Melgar case relate to claims of discriminatory dismissal. However, the requirements of Article 10 are also relevant to the separate question of fairness in dismissals.

Continuity of existence of position

It was suggested on behalf of the Respondent at the hearing that it should have been obvious to the Complainant that her fixed-term contract would not be renewed once the permanent position was created. However, such a consequence was not necessarily obvious, and as it transpired, this was borne out by the fact that there was no continuity between the two positions – the successful candidate for the permanent position did not start until 1st August 2017 and there was no maternity cover recruited for the Complainant’s position for the period from 29th June 2017 to 31st July 2017. If the permanent position was replacing the existing position, then the Complainant’s contract would have been renewed until 31st July 2017 and/or maternity cover should have been arranged for her position for that interim period.

Summary of Respondent’s Case:

The complainant alleges that she was unfairly dismissed by the respondent company. The respondent refutes the claim being made. The claimant was employed as an Interim Marketing Executive, directly employed by a recruitment company, as set out in the 4 fixed term contracts she received from 7 September 2015 to the 30 June 2017. As her employer, the recruitment company paid the complainant’s wages which was then invoiced to the respondent. The complainant’s timesheets were also sent directly to the recruitment company on a weekly basis. The respondent filled the post through an agency as it was prohibited from making permanent appointments under the terms of the Moratorium on Recruitment and Promotion in the Public Service. This was explained to the Complainant at her interview and she signed 4 contracts provided to her by the recruitment company confirming her understanding and acceptance of same.

In the case Eimear Musgrave v Paypal Europe Sevices Ltd UD 1630/2012, the Employment Appeals Tribunal held that the complainant’s service with the respondent company while placed with them as an agency worker did not count towards service for the purpose of a claim under the Unfair Dismissals Acts, 1997-2007:

“In making this case, the claimant has invited the Tribunal to consider the contents of a contractual arrangement entered into by the claimant and a third party (GX). This document outlines the terms and conditions of an employment relationship entered into by the claimant as employee and GX as employer wherein the claimant would be placed with a “client” for the purpose of the supply of a particular service… The Tribunal has considered this agreement and finds that the only parties to this contract are the claimant and GX and that the mention of the respondent in the opening paragraph is confusing and unfortunate but in no way takes away from the clear intention that this is an agency company placing its employee with an end user and that, for the duration of this contract, the only party that could be considered the employer is the company known herein as GX.”

The respondent sent correspondence to the Department of Culture, Heritage and the Gaeltacht on 3 March 2017 making a business case for the sanctioning of a PR and Publications Executive role in line with the organisation’s Workforce Plan 2015-2017 . In this regard, the interim role that the claimant was occupying came to an end when the respondent received approval from the Department for the creation of a new permanent post of PR and Publications Executive which was required to be filled by open competition. On 5 May, the Head of Personnel & Operations was informed the complainant in a meeting that the post had been approved by the Department and that it would be filled by open competition. On the 8th May, the Respondent advertised the role both internally and externally. The Complainant received a copy of the job specification on the 11 May 2017 and applied for the role on 18 May 2017. At no stage, prior or during the recruitment process, did the claimant raise a grievance (which is referred to in her contract of employment) or express any concern to the respondent that the role was going to be advertised through open competition and that her fixed term contract would be ceasing due to a natural expiry of the role on the 30 June as set out in her contract.

The respondent strongly denies that it gave the complainant any assurances that she would get the permanent position once departmental approval was received. She was encouraged to apply for the position as a supportive Manager but did not make any guarantees of her success in the competition. We note that the complainant has not produced any documentation to support these claims.

It was clear from the outset that the employees contract was on an interim basis and should the respondent receive approval from the Department for a permanent position that the respondent would in line with section 11 of the Protection of Employees (Temporary Agency Work) Act 2012 inform the claimant of the vacancy to allow her to apply for the role.

Section 11 of the Act states: 11.— A hirer shall, when informing his or her employees of any vacant position of employment with the hirer, also inform any agency worker for the time being assigned to work for the hirer of that vacant position for the purpose of enabling the agency worker to apply for that position.

The Complainant had no automatic right to the role. It is evident that she also viewed the PR and Publications Executive role as a different position than the one she was filling as she notes in her claim form that the respondent had discriminated against her by not promoting her. It is clearly the case that if the complainant viewed the position as a promotion that it was not the same role she was occupying and as such she would have no automatic right to same.

In relation to section 11 of the Protection of Employees (Temporary Agency Work) Act 2012, some guidance may be drawn from the decisions of the Labour Court in relation to section 10 of the Protection of Employees (Fixed-term Work) Act 2003. That section provides a similar right of access to employment to fixed-term workers as the Act provides to agency workers.

Section 10 of the Protection of Employees (Fixed-term Work) Act 2003 states that:

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.

The scope of the obligation placed on an employer by this provision was considered by the Court in Aer Lingus v A Group of Workers [2005] 16 ELR 261. Here the Court held as follows: “The court accepts that the wording of s.10(1) of the Act and clause 6 of the[Framework] Agreement indicates that fixed-term employees have an entitlement to compete for available vacancies within an undertaking. However, the court cannot accept, on a reading of the agreement as a whole, that this is an unqualified and unconditional right admitting of no exceptions and not subject to a defence based on objective justification.”

Without prejudice, if the complainant were to be considered a direct employee of the Respondent, engaged on a series of fixed term contracts then the Respondent has still met their obligations in this regard. The employee had only worked in the role for approx. twenty-one months and as such the successive fixed term contracts provided do not exceed the aggregate duration of 4 years which under section 9 of the Protection of Employees (Fixed-Term Work) Act 2003 would entitle the claimant to a contract of indefinite duration. The employee was also informed as soon as departmental approval was received that her fixed term contract would not be renewed following the permanent post being sanctioned. In addition, the claimant informed the candidate of the vacancy in line with section 10 of the Protection of Employees (Fixed-Term Work) Act 2003.

It is clear that the respondent has met their obligations to the complainant.

Conclusion

For the Complainant’s claim under the Employment Equality Act 1998, the burden of proof rests with the complainant to show that she was discriminated against on the grounds of gender and family status. It is the respondent’s position that no evidence in the form of primary facts has been produced to support such a claim. As the Complainant has failed to establish a prima facie case of discrimination, the respondent respectfully submits that the claim must fail.

Notwithstanding and without prejudice to same, should the Adjudication Officer find that a prima facie case has been established by the complainant, it is the Respondent’s position that no discrimination occurred and that the Respondent acted in full compliance with the Employment Equality Acts 1998 to 2015 at all times. The respondent conducted a fully objective, clear and transparent recruitment process in line with their recruitment and selection policy.

With regard to the Unfair Dismissal claim, the respondent strongly refutes that this is the case. The complainant was directly employed by a recruitment company and was placed with the respondent on an interim basis. However, when the respondent received approval from the Department for the creation of a permanent PR and Publications Executive role on 5 May 2017, the complainant’s fixed term contract subsequently ended without renewal on the date of its natural expiry, 30 June 2017.

On the basis of the aforementioned points, the respondent respectfully requests that you find in favour of the respondent and dismiss this claim in its entirety.

Similarity between the roles.

The Complainant’s Solicitor has provided copies of the advertisements for the direct permanent position from May 2017 and the position that the Complainant successfully applied for in September 2015 and uses this to illustrate his argument that the role advertised in May 2017 was not a ‘new role’. The permanent role was positioned as a role that would be key in creating, developing and publishing content for online channels and offline publications. Among the accountabilities a key focus of permanent role was content (generation and editorial) With regard to the tasks the interim role focused more on own promoted events while the permanent post considered all concerts (meaning the permanent role a broader level of responsibility)

The Respondent in its submission and at the hearing, set out clearly that this was a new role within the organisation. The Complainants contracts had referred to her role as an interim role. The organisation had sought and received approval from the department for a direct permanent and pensionable position. It is important to note that in this approval, the department required the organisation to recruit through an open competition.

Alleged comments by external panel member

At the hearing all 4 members of the interview panel were present and provided oral evidence of what they heard or didn’t hear in relation to the alleged comments and were open to cross examination from the Complainants representatives. It is respectively asked that the Adjudicator to give primary consideration to the direct evidence from the participants at the meeting at which the comments were alleged to be made.

Previous work performance of the Complainant

The Complainant’s Solicitor has drawn attention to the e mails containing commendations from staff of the Respondent and asserted that how the performance of the successful candidate in his interview was significant enough to essentially outweigh his client’s performance in the role over two years remains unanswered by the Respondent.

It is strongly argued that this matter was dealt with at length at the hearing. The role being interviewed for was a new position to be filled by open competition. The Respondent set out selection criteria based on the future requirements for that role and a thorough interview process took place including a presentation by the candidates. The direct evidence of the interview panel was given at the Adjudication hearing setting and each person in turn give their evidence of why the successful candidate was selected in this open competition. On the basis of the aforementioned points and evidence previously provided in writing and orally, the Respondent respectively requests that you find in favour of the respondent and dismiss the claims.

Findings and Conclusions:

1)Employer

I note the conflict of evidence in this matter.

I find that the Respondent was not in a position to recruit directly a Marketing Executive.

I find that the Respondent hired the Complainant as an agency worker to fill that interim role. Therefore, I have decided that the Complainant was not a direct employee of the Respondent but rather an agency worker.

However Sec 13 (a) of the Unfair Dismissals (Amendment) Act 1993 which states, “the individual shall be deemed to be an employee employed by the third person under a contract of employment.” This means that the responsibility for the alleged dismissal rests with the hirer company in this case the Respondent.

In this case I find that the Complainant may take a case for alleged unfair dismissal against the named respondent.

I refer to the equality case above. I have found that the Complainant was not discriminated against on grounds of gender/pregnancy.

I note that it’s the Respondent’s position that once the Complainant was not successful then her contract of employment was terminated due to the effluxion of time.

I note the Complainant’s position that a fixed term contract may not be terminated during the period of the maternity leave and that the contract did not preclude the application of the Unfair Dismissals Act.

I refer to Sec 19 (1)(b) of the Maternity Protection Act states:

19.Ending of leave under section 18 where no change of circumstances

(1) Subject to subsection (2) and section 20, leave granted to an employee under section 18 shall end—

(a) in the case of leave granted to a pregnant employee, immediately before her maternity leave begins; and

(b) in any other case, on the date on which she ceases to be an employee to whom this Part applies.

This means that a fixed term contract may end during maternity leave when the contract reaches its end date.

Therefore, I find that this employment ended upon the expiry of the contract of employment.

Therefore, I find that there was no unfair dismissal.

Decision:

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

For the above stated reason, I have decided that this complaint should fail.

Dated: 12/10/2018

Workplace Relations Commission Adjudication Officer: Eugene Hanly

Key Words:

Unfair dismissal

ADJ-00011576

ADJUDICATION OFFICER DECISION

Marketing Executive

v Performances Arena

Complaints:

Procedure:

Background:

1)Employment Equality Act 19989 CA 15466-001

Summary of Complainant’s Case:

Summary of Respondent’s Case:

Findings and Conclusions:

Having regard to all the circumstances I cannot accept that the Complainant’s failure to attain the position is a fact from which discrimination on the grounds of pregnancy could be inferred.

Decision:

2)Unfair Dismissals Act 1977 CA 15466-002

Summary of Complainant’s Case:

Summary of Respondent’s Case:

Findings and Conclusions:

Decision:

v

Performances Arena