EMPLOYMENT EQUALITY ACTS – 1998 - 2011

DECISION No: DEC-E2019-005

PARTIES

A Secondary School Teacher

Fidelma O’Reilly Ryan

vs

The Department of Education and Science

File No : EE/2014/025

Date of Issue:   18th April 2019                    

Representing the Complainant:

Emmet Whelehan Solr

From Byrne Wallace Solicitors,

Together with

Diarmaid De Paor of ASTI

Representing the Respondent:

Tony Kerr BL

Lorraine Williams Solr. from the Chief State Solicitors office

The Claim

The Claimant is a secondary school teacher. The Claimant has initiated proceedings as of the 24th of January 2014 at which time the Claimant issued a complaint to the Director of the Equality Tribunal by way of Workplace Relations Complaint Form wherein she claims that she has been discriminated against by her Employer by reason of her Gender and her Family Status.

The Claimant alleges that a Department of Education and Skills Circular (9/2013) which came into effect on the 1st of May 2013 operates to discriminate against her on the ground of her gender and family status. In particular she claims that she is now being treated less favourably than her non-pregnant colleagues as she has not been afforded the same entitlement to annual leave and public holidays.

The Claimant asserts that she has been discriminated against, contrary to Sections 6(2A) and 8(6) of the Employment Equality Acts 1998-2011 as well as the Recast Equality Directive (2006/54/EC).

Employment Equality Act 1988 - and in particular the general prohibition against discriminating against employees in the workplace per section 8

“8. — (1) In relation to—                                                                            

• access to employment,

• conditions of employment,

• training or experience for or in relation to employment,

• promotion or re-grading, or

• classification of posts,

 an employer shall not discriminate against an employee or prospective employee and a provider of agency work shall not discriminate against an agency worker"

Section 6. -(1) sets out the circumstances in which discrimination is taken occur: 

 “For the purposes of this Act, discrimination shall be taken to occur where, on any grounds in subsection (2) (in this ACT referred to as the discriminatory grounds) one person is treated lass favourably than another is, has been or would be treated”

Section 6. -(1) provides:

“As between any 2 persons the discriminatory grounds (and the descriptions of those grounds for the purposes of this of this Act) are –

• That one is a woman and the other is a man (in this Act referred to as the “gender ground”)”

• That one has family status and the other does not (in the Act referred to as the “family status ground”)

Section 6. -(2A) provides: -

“Discrimination on the gender grounds shall be taken to occur where, on a ground related to her pregnancy or maternity leave, a woman employee is treated, contrary to any statutory requirement, less favourably than another employee is, has been or would be treated.”

The Background

The Background herein is identical to the factual background outlined in the WRC decision DEC-E2018-018 A National School Teacher -v- The Department of Education and Skills. The factual background was not challenged by either party. The Claimant’s Union ASTI did introduce a letter written by Pat King (General Secretary of ASTI) and dated the 4th of January 2013. This was opened to me in the course of this hearing

The Department of Education and Skills Circular (9/2013) has (it is alleged) brought about changes to heretofore recognised leave in lieu arrangements following maternity leave. The introduction of these changes has been seen as discriminatory by the Claimant who seek appropriate redress for the breach, and who seeks an order for equal treatment, and an order that the DES reinstate leave in lieu for holidays which fall within maternity leave.

As far back as 1989, the INTO had supported a case taken on behalf of its member, Ms. Siobhan Mc Kiernan under the Maternity Protection of Employees Act 1981. As reported in the INTO CEC Report 1989/1990, the INTO (on behalf of Ms. Mc Kiernan) argued that the Maternity Circulars in force at the time were in breach of Section 15 (4) of the Maternity Protection of Employees Act 1981, which states: -

“(4) A period of absence from her work while on maternity leave or additional maternity leave shall not be treated as part of any other leave (including sick leave or annual leave) to which an employee concerned is entitled.”

Ms. Mc Kiernan’s claim was upheld, and she was granted leave in lieu of those holidays which fell during her maternity leave. In his recommendation, the Rights Commissioner (Mr. Bob Clarke Ref BC 142/89) stated that:

“The provision of the Maternity Protection of Employees Act must take precedence over any domestic or Departmental regulations… where such regulations would propose to limit the application of the terms of the Act to any employee covered by the Act”.

It is noted that at this Rights Commissioner hearing no representation was made by or on behalf of the Employer National School and, more importantly, the Department of Education was not on Notice of these proceedings although it was on the Department of Education’s specific advices that the school had acted. The Department having indicated that there was no precedent to allow annual leave to be taken in term time.

On foot of this case, the DES issued Circular 19/90 “Revision of Rule 119 Maternity Leave for Teachers” which stated inter alia

“Where maternity leave overlaps school vacation a teacher will be entitled to leave in lieu with pay for the vacation days overlapped, subject to a maximum of 27 days in any calendar year”.

In practise, this has meant that when a teacher is out of the workplace on her Maternity Leave, the days that the primary school (wherein she works) closed for well-recognised scheduled breaks such as Easter, Christmas and Mid-Term etc these were formally acknowledged as having been somehow “lost”. The teacher was allowed (at the end of her Maternity leave) a further period of up to 30 days of fully paid leave in lieu of these periods of school closure. It is noted that the increase to 30 days occurred when the period of paid maternity leave increased.

It is acknowledged that the implementation of this Circular over the next 22 years became an imbedded part of the primary and secondary school teacher’s expectation when taking Maternity Leave.

On 5th December 2012, as part of the provisions for education in Government Budget for the year 2013, the Minister for Education and Skills Ruairi Quinn made the following announcement as part of his briefing: -

“Currently teachers and SNAs on maternity leave are entitled to an additional maximum of 30 paid absence days, in lieu of days during their period of maternity leave when the schools were closed. This benefit was introduced at a time when paid maternity leave stood at 14 weeks, rather than the 26 weeks that currently operates and was to compensate for school closures which occurred during the maternity leave period. The cost of covering the substitution for these absences in 2011/12 was approximately €20 million. This arrangement, which is not available to other public servants or private sector workers, is to be ended. This will not affect a teacher’s or SNA's entitlements to 26 weeks’ paid leave and an optional 16 weeks’ unpaid maternity leave. A similar change will be made in respect of adoptive leave in lieu. The new measure will be introduced on May 1st, 2013 to give some notice. It will result in savings of €11 million in 2013 and €20 million in a full year”.

The ASTI immediately raised concerns with the DES about the proposed changes, which were contained in a draft Circular sent on 19th December 2012. In a letter from Pat King (previously referred to) the ASTI specifically opposed the proposed changes.

Despite this intervention, matters progressed and to deliver on the Minister’s intended objective, the DES issued the Circular 09/2013 which states at section 8: -

“8. Statutory Annual Leave/Public Holiday Entitlement

8.1 In general full-time employees are entitled to 20 days annual leave. Employees who work less than full hours are entitled to annual leave on a pro rata basis.

8.2 Any entitlements in respect of public holidays occurring while on maternity leave will be addressed by additional annual leave.

8.3 These annual leave entitlements are to be taken on existing school closure days that occur in the leave year in question i.e. both before and after the maternity leave period. Annual leave entitlements are to be taken at a time outside of the period of maternity leave.

8.4 When availing of statutory maternity leave and there are not enough school closure days in the leave year to absorb all annual leave entitlements, it is permitted to take the necessary days immediately before the maternity leave in the same leave year. Alternatively, teachers will be permitted to carry the balance forward to the following leave year but must then take these days during school closures.

8.5 Teachers who resign/retire or their employment ceases may be entitled to additional payment in lieu of their accrued leave.”

The implementation date for the changes was 1st May 2013.

This Circular purports to articulate a difference between school closure dates and Annual leave/Public Holiday dates. The Circular 09/2013 is the first time that the Department attempted to lock down the notion of Annual leave in terms of a maximum entitlement i.e. 20 days and when same could be availed of. Annual Leave henceforth was to be taken on existing school closure days. It is noted that this had, in fact, always been the practise and taking holidays/annual leave during term time was not the norm. This Circular had the effect of trying to distinguish between the Statutory entitlement to 20 days Annual Leave (together with Public Holidays) and those other days of Leave which simply existed because of the way the School year worked i.e. Term times and School closure times- Christmas, Summer, Easter etc.

Oral Evidence

The Claimant Ms. Fidelma O’Reilly-Ryan has been a teacher of English, religion and History for 24 years. In that time, she has experienced three periods of Maternity Leave. In 2000, 2011 and lastly in 2013. The Claimant said that her final pregnancy and maternity leave was very stressful arising out the fact that the Government circular of 2013 meant that her paid leave was considerably foreshortened (by six weeks).

The Claimant gave compelling evidence of the disruption and uncertainty. Her baby went into a creche where she refused to be bottle fed for a week and the Claimant believes that was because she had gone to Creche too early.

The Claimant gave evidence that she genuinely believes she has an entitlement to the school holiday days. That they are a necessary payback for the hard work put in at term time. The Claimant stated this was a time to kick back and relax. When asked in cross examination the witness confirmed that she believed she was entitled to the twelve weeks of holidays as Annual leave. It is a right and not a privilege.

Teacher’s get paid over twelve months though only in the classroom for 9 months of the year.

The Claimant (through her representative) submits that she has been less favourably treated on the grounds of her gender and family status than a comparator, a teacher who was not pregnant and/or had not taken maternity leave, and who was therefore in a position to avail of holidays (as the Claimant’s perceived them to be) in the specified periods set out in the Circular 0034/2011- Christmas, Easter etc. The Claimant was out on maternity leave during these periods and could not avail of any leave in lieu of those holidays on her return to work and she has therefore, she says, being less favourably treated than her colleagues.

The Respondent’s only witness a Mr Barrett was a Principal Officer with the Department in charge of certain (usually pay and productivity related) terms and conditions for Secondary School Teachers.

He confirmed that the change brought about in circular 2013 was one which was not generally up for much discussion with the Unions. He confirmed that there was a considerable amount of negative feedback when the draft circular was first sent out but that the changes being made were a fait accompli and a measure of cost cutting which had to be made across the board. The witness provided me with a letter (dated the 4th of January 2013) from the ASTI General Secretary – Mr. Pat King - which made certain observations about the proposed changes, but Mr. Barrett confirmed that no compromise was on offer and the proposed change was brought about. This was unusual as normally the Department engages with the Unions as their partners in education and tend not to impose the will of the Department on the Unions. The abolishing of the leave in lieu arrangements was not popular with the Unions and it was noted by Mr. Barrett that the change applied to parents taking adoptive leave in the same manner.

It is noted that the 2013 Circular also imposed for the first time the Annual Leave entitlements for secondary school Teachers which were measured at the very lowest Statutory entitlement of 20 days. The Circular directs that Annual Leave should be seen to be taken in the periods of school closure which occur throughout the school year in line with the academic timetable. Mr. Barrett confirmed that he himself had more Annual Leave days than 20 and that distinct categories of Public Servants had different numbers days of Annual Leave.

Mr. Barrett accepted that it was hard on teachers that their leave in lieu was perceived to be extinguished but pointed out that the Department had preserved Maternity Leave entitlements together with Annual Leave entitlements which kept them on an equal footing with all Public Servants.

Mr. Barret explains that the school year runs from the 1st of September to the 31st of August. 167 days annually are expected to be classroom based. He did not accept that not being in the classroom precluded Teacher’s from working, upskilling, correcting and preparing. The Department most certainly recognises the need for rest and relaxation but does not take the view that all days of school closure are days of protected annual leave. The Department points to the possibility of taking parental leave at the end of Maternity Leave albeit it is unpaid.

In cross examination the witness confirmed that the Department had initially been persuaded by the Rights Commissioner findings in 1989 for giving a further period of paid leave in lieu of school closure days that have been missed. This was contained in Circular of 2011. This was an operative term or condition but was not intended to become an entitlement.

The extinction of this policy was simply borne out of budgetary considerations at a time when the Government was cutting spending in any and every aspect of Public Life. Other considerations were given consideration. For example, another consideration at the time was to increase staff/pupil ratios but this was not proceeded with. Instead the issue of granting paid Leave in Lieu came in to focus as an expense no longer tenable.

Mr. Barrett described the encroachment into the period of closure over the summer months. This happened with the Croke Park agreement though this was duly negotiated in the ordinary way. It was a considerable concession at the time. An extra 33 hours which is up to 4 days.

Mr. Barrett confirmed that the circulars outline the Terms and Conditions of the Employment (as it relates to pay and productivity) and cannot override Statutory protections.

Mr. Barrett confirmed that Teachers are only entitled to 5 days Bereavement Leave as against 20 days for other Public Service employees. The rationale behind this fact is not explained.

When asked Mr. Barrett says that the negative impact that this change would bring about was a consideration. The issues of nursing mothers, bonding and nurturing a new born would all have been to the forefront. At the time all decisions being made impacted negatively one way or another. For example, the issue of new entrants into the profession being paid so much less than their predecessors – this impacted negatively.

Both parties accept that a Secondary school teacher will enter into an Agreement with the Board of Management which recognises that the teacher’s duties, salary and emoluments are governed by the Rules which are set out in Circular format created and published from time to time by the Department of Education.

Jurisdiction

The claimant referred a complaint under the Acts to the Director of the Equality Tribunal on the 24th of January 2019. On the 25th of March 2019, in accordance with her powers under section 75 of the Employment Equality Acts, the Director General of the Workplace Relations Commission referred the case to me, Penelope McGrath BL, an Adjudication Officer/Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. On this date, my investigation commenced. Submissions were received from both parties and as required by Section 79(1) of the Act a hearing commenced on 25th of March 2019.

This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was also an Equality Officer prior to 1 October 2015, in accordance with section 83.3 of the Workplace Relations Act 2015.

Both sides made comprehensive oral submission in the course of the hearing. I also heard the evidence of a number of witnesses which was tested by way of cross-examination. I have additionally reviewed the comprehensive written submissions prepared by both sides.

Summary of the Claimants’ position

Mr. Whelan for the Claimant adopted the Claimant’s submissions which had been previously heard by me in the case of DEC-E2018-018 A National School Teacher -v- The Department of Education and Skills. These submissions were prepared and presented by Ms. Claire Bruton BL at that time and set out the INTO’s case in respect of their named members. Beyond that, Mr. Whelan sought to bring a couple of matters to my attention so as to distinguish his clients from those represented by the INTO.

Mr. Whelan pointed to the fundamental protection being afforded to women before and after the birth of a child. Mr. Whelan asked me to look again at the Maternity Protection Act 1994 (as amended) - and in particular Section 22 (4) which ensures that this protected leave shall not be treated as part of any other leave entitlement e.g. Annual or Sick leave. If I accept that the days lost are in fact a form of protected “Leave” then it cannot run concurrently with the maternity leave. If I consider the dictionary definition of “leave” i.e. days when it is permissible to be absent from duty and work then Mr. Whelan says that school closure days have to fall within the definition of “leave”.

The Circulars of 1990 and 2011 demonstrated a recognition on the part of the Executive that there was an entitlement (up to 30 days) of leave in lieu for this class of employee. The change brought about at the time of Minister Ruari Quinn was little more than a targeting of a vulnerable and protected group of Employees i.e. bonding and nursing mothers. Mr. Whelan indicated that even if it was a cost objective, it cannot justify the discrimination of a small group protected by the Equality legislation. Mr. Whelan appeared to suggest that the creation of the 2013 Circular almost amounted to an illegality insofar as there was no Union agreement to this. It was not he said normal practise to fundamentally change terms and conditions without consent and consultation.

In any event, the Claimant’s case must be that the Circular cannot amend a Statute that recognises that separate “Leave” types cannot run concurrently. The Maternity Protection Act 1994 (as amended) was not amended to allow for the change brought in under Circular 13. The Act is the primary piece of legislation and cannot be arbitrarily chipped away at. In short, if the Claimant is exercising a right to “leave” that is to say to be absent from the workplace then that leave cannot run concurrently with the Maternity leave as protected by Section 22(4).

Summary of the Respondent’s position

Mr. Kerr SC opened the case of Private McKenzie and PDFORRA -v- Minister for Finance – 2010 IEHC 461. In this case n Mr Justice Edwards found that in the interests of the common good the Executive was entitled to implement swiftly and unilaterally. Private McKenzie was looking for the re-instatement of certain allowances which had been lost to him in line with the severe cutbacks being implemented at a time of National crises. Mr. Justice Edwards said:

“ Par 5.4 - The Court considers in the exceptional and unprecedented circumstances of the case that the Government was entitled to act in the way that it did… There was no scope for discussion or debate about it”.

In any event Mr Kerr pointed to the fact that observation had been made by the Teacher Union (per letter of January 4th, 2013 from Pat King). It was not ultimately possible to accept them.

Mr. Kerr then went on to consider the relevance of the dictionary definition of the word “leave”. In this regard, it should be noted that Mr Kerr provided me with some authority (as it was agreed at the hearing he would do) relating to the interpretation of Statutes. In this regard I would accept that it is normal to assume that “English words derive colour from those which surround them”. The Maternity Act specifies “protected leave” of which there is a finite number of recognised types – Adoptive, Parental, Maternity etc. There is no justification for jumping from that to categorising school closure days as some sort of protected leave, he said. Also, there is another category of leave such as Bereavement leave or term time leave that have to be requested and are not an entitlement.

Mr. Kerr opened the decision of DEC-E2018-018 A National School Teacher -v- The Department of Education and Skills at length. The parallels between that case and this case are clear, he says. In particular I have made a finding in that case that the leave in lieu days were something of a privilege.

Lastly, Mr. Kerr rejected the argument that the cuts made were done so on the basis of cost alone and without regard to any discriminatory fall-out. This was not the case as no discrimination has occurred.

Conclusions of the Equality Officer

I have carefully considered the matters presented to me in this case.

The parties’ representatives presented a detailed look at the relevant Statutory provisions together with an analysis of the application and interpretation of the Law and I have considered these, and new authorities opened to me.

On balance I do not accept that the Claimant’s factual claim herein is not on all fours with the case of DEC-E2018-018 A National School Teacher -v- The Department of Education and Skills. I therefore cannot find that every single day of school closure can be classified as a day of Annual Leave or some other form of recognised protected leave. I cannot accept that a small number of state paid Employees would be entitled to a full 86 days of Annual Leave.

Neither party was in a position to definitively define the status of these days and quite simply they are days of school closure. I further accept that heretofore at least 20 of those 70 days must have had the status of Annual Leave and that remains the case.

I would also accept that for reasons of good management and planning Annual Leave must be taken to co-incide with the days that the school is closed anyway.

I am satisfied that however slowly and or tentatively done in the past, there is scope for an encroachment on the School Closure days. This was evidenced in the Croke Park deliberations.

I further accept that the 20-day Annual Leave entitlement for Teachers should only be taken in tandem with School Closure days. I would also accept that there is no inherent entitlement either in the Public Service or in the Private Sector that Annual Leave entitlements have to be taken at the end of a fixed term of Maternity Leave. This is something which may be arranged at a local level and depending on the needs of the workplace. With Teachers though the Annual Leave will generally be taken on school closure days.

The Claimant wants me to enhance the status of these school closure days so as to protect them as some form of protected leave which cannot clash or run concurrently with Maternity Leave.

If the Claimants were successful, then the law both at home and at European Level is absolutely in their favour. I fully accept for example, that Annual Leave and Maternity Leave cannot run together and that there is a right and expectation that a Mother will not be disadvantaged by reason of having taken Maternity Leave and nor will she return to the workplace on lesser terms and conditions.

Before 2013, of course school closure days were afforded some sort of status and teachers who missed them whilst out on Maternity Leave could accrue losses and take extra paid leave at the end of their Statutory Leave. However, I have noticed that even before 2013 there was an arbitrary cap of 30 days placed on the entitlements which might accrue. This despite the fact that a Teacher out on Maternity leave might lose out on up to 50 days of school closure.

I believe that this acceptance of the 30-day limitation was a recognition that the arrangement operated as an enhancement to the general norm. The entitlement of up to 30 days extra paid leave was over and above what any other class of employee taking Maternity Leave was entitled to. The entitlement was created by Circular and removed by Circular.

Whilst the Claimant, I accept, is justifiably upset at the change in how her second Maternity Leave operated compared to her first I am persuaded that the upset comes from the loss of a privilege and not from an active discrimination being perpetrated by her Employer.

The Claimant returns to the workplace having suffered no detriment and with no diminution to her terms and conditions of employment as a result of being out on Maternity Leave. She comes back on an equal footing with her colleagues. She has twenty days Annual Leave (to be taken in school break dates or school time if there are insufficient dates left) and she continues to enjoy the balance of the School closure days alongside her colleagues.

Decision

The Claimant’s allegation was that a Department of Education and Skills Circular (9/2013) which came into effect on the 1st of May 2013 operates to discriminate against her on the ground of her gender and in particular she claims that she is now being treated less favourably than her non-pregnant colleagues as they are not being afforded the same entitlement to annual leave and public holidays.

I do not find that there has been a discrimination and consequently the claim under the Employment Equality legislation must fail.

______________

Penelope McGrath BL

Equality Officer/Adjudication Officer

      18th April 2019