Complainant

Respondent

Parties

Yvonne Hennessy

Telegael Teoranta

Representatives

Purdy FitzGerald Solicitors

Colm Kitson (BL) and Mairead McKenna (BL) instructed by 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-00008294-001

22/11/2016

The respondent first employed the complainant as a design supervisor on the 3rd of August 2010, head of animation from 2011/2012 and thereafter as head of design. The employment ended on the 29th of July 2016 on foot of her written resignation of the 4th inst. She received a gross monthly salary of €4,166. The parties made written and oral submission to the hearing. Additional written submission was sought and provided post hearing.

The complainant submits that her duties changed significantly during her tenure and that her salary although increased did not reflect the level of her input, hours of work or commitment. Her job title was changed on two occasions and her place of work was changed to a building which was not fit for purpose. No contract was issued to reflect the job titles changes or increased input. The complainant and her team faced continuous challenges (details provided) in the face of an indifferent management response as it relates to the change of work location. On the last day of September of 2015 she informed the respondent that she was pregnant. The CEO enquired whether she would work from home during her pregnancy as she had done previously. She suggested that matters could be worked out closer to her due date. On the 1st of December 2015, she sought clarification as to whether she should work from home during her maternity leave. She was informed that the matter had been discussed at a recent management meeting and that concerns had been expressed in relation to her ability to fulfil her role from home with two children. She was taken aback by this harassment, felt insulted by the inference and noted that no such allusion was made during her last pregnancy. On another occasion the CEO had enquired “how she felt she could do her job with two children?” Being concerned that her department was severely understaffed and would be left without a manger she wrote to the respondent confirming that she was willing to work from home and requested that she be based at home one month in advance of her due date as her work station was somewhat remote. The response failed to indicate any concern for her but rather enquired concerning her capacity to run her department from home. She wrote to the respondent on the 7th of December 2015 indicating that she would advertise her post on a cover basis for the duration of her pregnancy. She met with the CEO, CFO and another board member on the 11th of January 2016 to discuss operational issues and projects at hand. The complainant had brought a copy of the proposed advertisement for maternity leave cover but had to remind the CEO by email later in relation to the necessary authorisation. The advertisement was duly posted and only one application was received. The person concerned was not suitable. She set out the dates for her maternity leave in a letter of the 15th of February 2016. The CEO asked if she would work her maternity leave on the 19th inst., she refused stating that her decision was made. On the 24th inst. the COO attended her office and asked to be briefed concerning her job. He was somewhat stressed concerning the workload and stated that he felt that the department would be closed and the work outsourced during her maternity leave. He subsequently asked the respondent’s facilities co-ordinator (FC) to speak to her and a conversation took place in the kitchen at head office. The FC asked what arrangements could be put in place to ensure that the department would continue. The complainant “once again flagged how poorly treated her department were” and that “she couldn’t even take her maternity leave without the threat of her department being closed”. These threats fall within the definition of victimisation arising from the complainant’s request for her entitlement to statutory maternity leave. The FC informed the complainant later that she had passed on her concerns to the CEO however despite the same no contact was made with her in this regard. Rather than see her department closed the complainant indicated to the FC that she was willing in the circumstances to work her maternity leave. She indicated that the terms would have to be written by way of an agreement and was informed that terms would be agreed to suit her situation. She met the COO again on the 4th of March 2016 in the reception and informed him that as no written terms had been produced she intended to proceed to take her maternity leave. He said that he thought they had been produced and sent and she received an email attachment on the 7th inst. outlining the terms. She did not lay down the terms as stated in the document and it is notable that it was signed by the two most senior managers and did not seek her signature. Her baby was born on the 20th of March 2016 and she returned to work 3 days later despite the fact, that she had requested two weeks of annual leave entitlement in the direct aftermath of the birth which was provided for in the letter of 1st of March 2016. She was subjected to intolerable treatment resulting in her feeling that she was being pushed out. She recorded her working hours fastidiously and the respondent duly logged them. She was paid her salary less maternity benefit despite the fact, that she was being denied her right to take maternity leave. The respondent thereby benefitted from the arrangement. She was denied overtime pay resulting in further discriminatory treatment on days on which she had to attend medical appointments. She was refused the right to work that time which was deducted from annual leave. During this period her entitlements were being eroded. Her entitlement per agreement to carry over 43 days of annual leave accrued the previous year was reneged upon and she was informed that she could not take 5 days of annual leave at the end of August 2016 to accommodate a creche shut down at that time. She received a telephone call on the 30th of June 2016 at 12.45pm from the CEO asking if she could ‘drop in’ for five minutes. She informed him that she was feeding her child and that she would require notice of the meeting. He hung up and she received an immediate email from reception asking her to attend at the office to meet visitors at 2pm. She had to bring her baby and was obliged to ask colleagues to mind the child while she was there. The CEO ignored her and she had to introduce herself to the visitors. It was obvious to her that the respondent “had no intention of complying with the agreement that the parties had made” and she resigned her position on the 4th of July 2016.                                                                                             

The complainant submits that her right to maternity leave was taken from her on the basis that she was pressurised to agree to forego her statutory entitlement. Additionally, the respondent failed to deal with the concerns the complainant had raised in respect of her department, failed to meet her requests for her full maternity leave entitlement and failed to meet the terms which it had put in place. The resignation resulted from discrimination on ground of gender.                                                

“In addition, due to the treatment of the Claimant by the Respondent in failing to deal with any concerns raised by her, initially in relation to her department and then in its failure to accommodate her requests for full maternity leave entitlement and then by its failure to comply with the terms and conditions for that period of time which the Respondent itself had put in place, resulted in the Claimant offering her resignation. The resignation resulted from discrimination on the ground of gender and we refer to Section 8 (6) of the Act.                                                                                                

A finding that the complainant has been subjected to acts of harassment, victimisation and discriminatory constructive dismissal is sought.

The respondent submits that it has an exemplary record with its employees as it relates to family and personal relationship matters. It has been pro-active in accommodating any reasonable request in these areas and the same is reflected in its policies and procedures. It has most recently (16th of February 2015) provided relevant training by an independent third party at a seminar which particularly focussed on dignity and respect in the workplace and the right of an employee to raise grievance or issue in this regard. The complainant attended the seminar but raised no issue or grievance hitherto although she had ample opportunity to do so. The issues raised herein were discussed with the complainant during her employment but none were raised by way of grievance procedure. Furthermore, the issues raised in this complaint span the entirety of the employment relationship and were discussed with the complainant at the time the pertinent decisions were made. The majority of the herein complaints “have no correlation to her gender, pregnancy or family status but were for legitimate reasons articulated to Ms Hennessy at the time in question and which never gave rise to any form of complaint, whether on the grounds of equal treatment or otherwise.”

It is submitted that the claimant’s resignation was motivated by her desire to go into competition with the respondent as evidenced by the fact that she had incorporated her own company on the !9th of May 2016. She wrote to a client of the respondent offering the services of the new company on the 12th of July and on the 5th of August 2016 in contravention of terms set out in her contract of employment. Her title was changed by herself in first instance and by agreement with her in the second. He salary was increased to reflect her promotion at the appropriate time and at no time thereafter did she express the view that “it was not reflective of her commitment s and/or her workload.” The complainant’s contract requires that she may from time to time be required to work at other locations. Lack of space dictated the move and the complainant encouraged and eagerly embraced the move (details provided). She has misrepresented the alleged deficiencies of the premises provided and has retrospectively complained that is 8 miles from head office although she was paid travel expenses in respect of all travel to and from the head office. Operational issues concerning the premises were dealt with as quickly as possible and since the department has moved back to head office a 10 to 12 - person crew have resided at the premises without similar issues arising. The complainant alleges that she was setting mouse traps when she was 8-months pregnant. She did so without notification to the respondent who has a Rentokil contract in the event of rodent problem. The issues raised in respect of the facilities available were presented by the complainant as issues raised by her staff and not by the complainant herself. The respondent was genuinely of the belief that the complainant had no issue with the move and it was not made to discriminate against her on the ground of her family status or pregnancy which was notified to the complainant some months after the move.

The maternity leave in this case (this was the complainant’s 2nd such leave during the employment – the first was from the 9th of January 2014 to the 9th of July 2014) was scheduled from the 14th of March to the 12th of September 2016. The maternity leave is unpaid. Therefore, the complainant “at her own instigation requested that she receive her full salary entitlement whilst on maternity leave in return for continuing to work certain hours, at times to be chosen by her at her own discretion, when on leave.” It is denied that her manager in this case requested her to work her maternity leave. The request was made by the complainant herself on both occasions. She confirmed the fact that she requested to work her second maternity leave to a colleague (the facilities co-ordinator) on the 25th of February 2016. She also reported to the colleague that her manager had asked her to follow it up by e-mail and that when she did so he expressed reservations about her working the leave. The reservations were objectively based. Supervisory capacity in respect of time and attendance for the team was impaired on this occasion as opposed to the previous maternity leave. Certain misunderstandings arose in the first maternity leave which would require discussion (hours worked and TOIL). In the circumstances only the first issue was discussed. Based on the complainant’s e-mail of the 7th of December 2015 addressing managements concern, the fact that it appeared that she was anxious to work during her maternity leave, the projected work load in the period and the less than enthusiastic response in relation to temporary filling of her position it was decided to facilitate her request that she would work certain hours for full pay. The complainant appeared to vacillate for a period thereafter and as a result the facilities co-ordinator with whom she had a good relationship was requested to speak to her to clarify. The complainant expressed her preference to work for full pay but as reservations had been expressed by the respondent she would require that certain details would be set out in writing and signed by the CEO and the Head of Finance which was provided. Allegations that the complainant was threatened with the closure of the department are unfounded as the department is an integral part of the respondent’s business. The respondent acted promptly to replace the complainant following her resignation and the same would have been possible had she elected to avail of her full maternity leave. The departmental budgets were not discussed at heads of department meetings and she was not informed at every such meeting that her department was in the red. The issue of her department budget was raised with her by management in January 2015 some 9 months prior to her notification of her pregnancy and this was done by way of assistance and support. It is asserted that the complainant worked hours additional to her contractual hours. She recorded her hours fastidiously and was contractually entitled to TOIL which she availed of at all appropriate times. Furthermore, she asserts that she worked full time during her second maternity leave and that the respondent benefitted financially therefrom. The arrangement which reflected that applicable in the first maternity leave was that she would not be required to work a full week, rather a few hours here and there at her convenience to ensure that the department “ticked over” as reflected in her time sheets at that time. Management had the same expectation in this regard as it relates to the second maternity leave. She was not refused overtime she was requested not to do overtime. The complainant worked 9 projects during her first maternity leave and at the commencement of her second maternity leave there were only 2 projects which would reduce to 1 after a few months. Concerning annual leave entitlement, the complainant states that she was back to work 3 days after giving birth fielding calls and e-mails however her signed time sheets for the relevant two weeks record her as being on annual leave. Her annual leave entitlement (carry over) was the subject of dispute between the parties, post resignation. The complainant was aware of the criteria for accruing TOIL and annual leave and was paid her full entitlement post resignation. Her assertion that she was entitled to carry over 43 days annual leave is without foundation. The issue of her office was discussed with her at the time and she indicated that she had no problem with the temporary use of the same. It arose from the requirement for the commencement of a full time stop animation project adjacent to the premises where the complainant’s department was situated and the matter was discussed with her and the members of her department. Concerns were raised and it was decided to temporarily relocate the department back to head office. The reduction in the number of employees in the department arising from a reduced workload together with the capacity to also accommodate the sound department who were experiencing their own space problems influenced the decision and not as alleged by the complainant that the premises were unsuitable of unfit for purpose. The COO spoke to the complainant in this regard and assured her that the use of her office was a temporary fix on the basis that it would be vacant for the period of the maternity leave and that she would be assigned an office fitting her position on her return. There was no objection whatsoever from her at the time. There have been two occasions in the recent past where due to lack of space at head office two other members of staff had to vacate their private office by way of concession. Other members of staff shared their accommodation as appropriate and when need arose to ameliorate the situation. No complaints have been received in relation to any of these alleged acts against the complainant hitherto. The incident of the 30th of June arose as the complainant had chastised a colleague for not being informed of meetings previously and two important clients of the respondent were visiting. The CEO thought in those circumstances that it would be important that the complainant should be there. He telephoned her and she was unable to lead the tour because of the short notice. He thought to have another colleague email her to ask her to attend at the post tour meeting to discuss the details of their project and felt that she would be keen to attend. No complaint was received in relation to this matter. “The complainant has failed to identify another person, who in comparison, she can argue she had been treated less favourably than or would be treated……….. the complainant has also failed to establish a causal link between any alleged discriminatory treatment and her gender or family status”.                     

The complaint herein was received by the WRC on the 22nd of November 2016 and therefore the cognisable period of complaint is from 23rd of May 2016 until that date. The letter outlining the agreement is dated the 1st of March 2016 and was in the complainant’s submission received on the 7th inst. It has been submitted that the agreement was entered under duress and I do not accept that assertion. The terms of the agreement were set out in writing and the document refers to the fact that the complainant had communicated to the FC that she wished to work from home during her maternity leave and that the specific terms and conditions were outlined by herself subject to adherence by the respondent. The respondent signed the same as confirmation that it accepted the complainant’s terms in the matter. I note that in her email to the CEO on the 18th of January 2016 the complainant implies a preference for home work and stating that her bringing the job cover ad to the meeting of the 11th of January 2016 was not a statement of intent but merely following her colleague’s suggestion. It is a matter of fact that the agreement falls outside of the cognisable period as it was implemented on the 14th of March 2016. It was operative and continuous until the date of termination which was the 29th of July 2016.                                                                                                                            I do not accept that the complainant was under duress other than from a self-inflicted or retrospective perspective to accept the agreement reached relating to her maternity leave. I accept the evidence of the COO that his discussion with her on the 24th of February was in the context of what needed to be done in circumstances where she would take her maternity leave. I note that outsourcing is regularly used within the department. The respondent had at certain points accepted and was resigned to the fact that the complainant had chosen to take her maternity leave.

On that basis I find that the complainant freely entered into an agreement with the respondent to work from home during her maternity leave on a similar basis to that entered during her previous maternity leave. She therefore, waived her statutory rights in the circumstances described.

Concerning those elements of the complaint which fall within the cognisable period I find that the submission of the respondent is preferable and that the complainant therefore has not established a prima facie case of unlawful discrimination in the circumstances described.

The complaint is not well founded.