Complainant

Respondent

Parties

Louise Kinsella

Irish Prison Service

Representatives

Francis Watters and John Clinton Prison Officers Association

Cathy Maguire BL

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-00018130-001

24/03/2018

The Complainant contends she was discriminated against on grounds of gender, family status, promotion and conditions of employment as she was not informed of promotional vacancies while she was on maternity leave. The complaint was received on 24th March 2018.

The Complainant is a Prison Officer, employed in the service since 9th December 2002.                     She commenced a period of maternity leave on 15th February 2017, and this ended on 15th August 2017. She then commenced a period of accrued annual leave until 24th September 2017. Her employer was at all times aware that she would be absent from work from 15th February to 24th September 2017. With the exception of 4 work days, during which she contends that she had no access to emails, she was off work again until 30th October 2017.   At this point she realised that 3 promotional competitions had been advertised internally and she had not been notified of them. The dates of the notifications of the competitions were 25th April 2017 and 30th August 2017.           The closing dates were 19th May 2017 and 22nd September 2017. The notifications were sent by email to all staff. The Complainant had no access to the IPS internal email system while on leave.   Accompanying the notifications was a note stating that the relevant circulars and application forms should be “brought to the attention of all eligible staff, including those eligible staff who are on annual leave, sick leave, career break etc”. Attached to the circulars was a form to be filled out and returned listing the Officers who had been on leave and had been notified of the vacancies.   There is no information available to indicate if this requirement was completed in respect of the said circulars.   Two of the notifications occurred during the period of maternity leave and the other occurred during the period of agreed accrued annual leave.   The Complainant became aware on 30th October 2017 of the promotional opportunities. She raised the issue with the HR Governor and received no reply. She subsequently consulted the POA and on 14th November 2017, the POA enquired why she was not informed of the vacancies. On 8th March 2018, a reply was received apologising for the delay, and confirming that the Complainant had not been advised of a number of promotional opportunities. The reply also stated that the responsibility lay with local management and that the Complainant was not advised due to systematic failures owing to a number of admin staff being on maternity leave at the time.  In the meantime, during January 2018, the Complainant entered into correspondence and had a meeting with Governor G and was informed that one of the vacancies had not been filled and that Governor G would enquire if the Complainant could be facilitated with a late application. This was confirmed subsequently as not an option. The Governor also apologised sincerely for the omission in relating to the Complainant not having been informed of the vacancies and explained that this was due to staff shortages, inexperience and maternity leave.   It should be noted that as well as the provision for notifying staff on leave of vacancies and promotional opportunities, Circular 31/06 provides that circulars and office notices must be brought to the attention of staff on maternity / additional maternity leave. The circular states:

“Personnel Officers should ensure that Office Notices and general Circulars are brought to the attention of all officers on Maternity Leave, and that notices of Open and/or Confined Competitions are brought to the attention of officers on Maternity Leave who may be eligible for these competitions”.

It is argued that the entire period of maternity leave constitutes a special protected period as outlined in the Court of Justice of the European Union decisions in Webb v EMO Air Cargo (UK) Ltd [1994] ECR 1-3567, and Brown v Rentokil Ltd [1998] ECR 1-04185. Directive 2006/54/EC on the Principle of Equal Treatment of Men and Women (The Recast Directive) provides at Article 2 (2) (c) that any less favourable treatment of a woman related to pregnancy or maternity leave within the meaning of Directive 92/85/EEC constitutes unlawful discrimination for the purposes of that Directive.   Section 8 of the Employment Equality Acts provides at Section 8 (8) :

“Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee in relation to promotion if, on any of the discriminatory grounds –

(a) the employer refuses or deliberately omits to offer or afford the employee access to opportunities for promotion in circumstances in which another eligible and qualified person is offered or afforded such access, or

(b) the employer does not in those circumstances offer or afford the employee access in the same way to those opportunities”.

Section 85 A of the Employment Equality Acts sets out the burden of proof which requires the Complainant to establish in the first instance the facts from which it may be presumed that there has been discrimination. If the Complainant succeeds in doing so, then the burden of proof shifts to the Respondent to prove the contrary. The Labour Court has elaborated on the interpretation of Section 85 A in Melbury v Valpeters (EDA/0917) and Teresa Mitchell v Southern Health Board (DEE11 150201).

It is argued that the primary facts of this case are that while the Complainant was on maternity leave and immediately following on from her maternity leave, the Respondent advertised for 3 promotional opportunities for which the Complainant was eligible, but failed to inform her. This was acknowledged by the Respondent in writing on two occasions.   The burden of proof has been thus discharged by the Complainant and the shifting of the burden of proof is clearly proven and self-evident. The Complainant was not informed of the promotional opportunities because she was on maternity leave. The Respondent has admitted this. It is submitted that any redress in respect to this serious failure should be ‘effective, proportionate and dissuasive’ as reflected in the recast Directive 2006/54/EC.

Time Limits

The Respondent has argued that the complaint is out of time. In addition it was submitted that the Complainant’s delay in lodging her complaint was not reasonable and an extension of time should not be granted.  

Section 77 (5) (a) of the Employment Equality Act 1998 as amended provides that a claim for redress may not be referred after the end of the period of 6 months from the date of the occurrence of the discrimination or as the case may be, the date of its most recent occurrence.                                               Section 77 (5) (b) provides for a reference period not exceeding 12 months where reasonable cause has been accepted for extending the period.

The timeline in this case was

The Complainant commenced a period of maternity leave on 15th February 2017, and this ended on 15th August 2017.

Two of the three positions were advertised/circulated on 25th April 2017.

The closing date for applications was 19th May 2017.   Due to various factors, the Complainant only became aware of the situation on 30th October 2017.   The Respondent acknowledged that the Complainant was not notified of these promotional opportunities by email dated 13th January 2018 and 8th March 2018.

Between 30th October 2017 and 13th January 2018 and 8th March 2018, the Complainant and her union quite correctly gave the Respondent every opportunity to explain the situation and try to rectify it (when the possibility of a late application was explored to no avail) before the complaint was referred to the WRC which occurred on 28th March 2018.

Two alternative arguments are presented in respect of time limits as set out in Section 77 of the Acts. The first is that there is no question that the failure to notify the Complainant in April 2017 of the promotional opportunities was an occurrence of discrimination. However, the Respondent was in a position to address the consequences of the said discrimination when she returned to work. At the time of her meeting with Governor G one of the promotional positions had yet to be filled. However, on 19th January 2018 the Complainant was informed that having consulted with HR the Complainant would not be facilitated with a late application/interview. It is submitted that the failure to take the opportunity to facilitate the Complainant in applying for the positions in January 2018 was a further occurrence of discriminatory treatment and the date of that occurrence was 19th January 2018. It is submitted that since this most recent occurrence occurred on 19th January 2018 and the complainant was submitted on 24th March 2018, the complaint is within time.

In the alternative, should the complaint be ruled out of time as provided for in Section 77 (5) (a), then under Section 77 (5) (b) reasonable cause exists to extend the time.   The Complainant has presented evidence that she only became aware of the discriminatory treatment on 30th October 2017, having returned from an extended period of maternity and annual leave. Whilst this is not suggesting the ‘discoverability test’ it does explain why the discriminatory occurrence could not have come to the attention of the Complainant within the 6 month period provided for in Section 77 (5) (a).   For much of the entire 6 month period form 26th April 2017 the Complainant was on maternity leave.   It should be taken into account that any period of maternity leave is a period of ‘special protection’. In the context that maternity leave and additional maternity leave can last for a period of 42 weeks, should the discriminatory event occur in the earlier part of the leave period it is quite probable that the 6 month period will have expired before the woman becomes aware of the discriminatory occurrence. Pregnancy leave is a specific category of absence for work which is unique to women and it is an anomaly if possibly absurd that the period for making an application to the WRC will have expired before the woman returns to work.   It is submitted that the Complainant’s actions following the discovery of the discriminatory occurrence on 30th October 2017 were perfectly reasonable and it is submitted that an extension of time from 26th October 2017 to 24th March 2018 should be granted in accordance with Section 77 (5) (b) of the Acts.      

The Respondent submits that the Complainant lodged her claim outside the six months permitted by the 1998 Act as amended and does not satisfy the conditions for an extension of time under the Act.     The Complainant’s maternity leave commenced on 14 February 2017 and concluded on 14 August 2017. She then commenced a period of annual leave on 17 August 2017 concluding on 23 September 2017. The Complainant commenced another period of annual leave from 6 October 2017 to 21 October 2017. Therefore, whilst the Complainant was on maternity leave on 25 April 2017, she was not on maternity leave on 30 August 2017 but was on annual leave at that time.   The failure to notify the Complainant of the promotional opportunity whilst she was on annual leave, when men who were on annual leave and other forms of leave were similarly affected, cannot amount to an allegation of discrimination on the gender ground.

Relevant Law cited in submission includes:

-          The definition of discrimination as contained in the Recast Directive as including “Any less favourable treatment of a woman related to pregnancy or maternity leave within the meaning of Directive 92/85/EEC”, and the prohibition contained therein of discrimination in relation to promotion.

-          Section 8 of the Employment Equality Act 1998 as amended which prohibits discrimination in not affording the employee access to opportunities for promotion.

-          Section 15 of the Act which provides “In proceedings brought under this Act against an employer in respect of an act alleged to have been done by an employee of the employer, it shall be a defence for the employer to prove that the employer took such steps as were reasonably practicable to prevent the employee from doing that act…”

It is the Respondent’s policy to endeavour to notify all personnel on all forms of leave of promotional opportunities. In respect of the opportunity notified on 25 April 2017, the particular work location of the Complainant failed to notify her of the promotional opportunities in question due to inadvertence arising from inadequate staffing at the times in question due to maternity leave. Other members of staff, both male and female who were on leave at the time were affected in the same way.     The Respondent relies on Section 15 of the 1998 Act in the fact that the Respondent had taken reasonably practicable steps to ensure that all members of staff were notified of promotional opportunities whilst on leave and the omission in this case was inadvertent.

Time limits

The Complainant submitted her claim on 24 March 2018, some 11 months after the first notification of the promotional opportunity on 25 April 2017 and some 7 months after the second notification of promotional opportunity on 30 August 2017. It is submitted that whilst the Complainant was not aware of the failure to notify her whilst on leave, that fact only explains the delay until her leave concluded on 23 September 2017 and does not explain or justify the subsequent delay between that date and the date of the lodgement of the claim 24 March 2018. Nor is the delay justified by the fact that the Complainant made enquiries as to why she had not been notified. By her own account she was written to on 13 January 2018 with an apology and explanation for the non notification. It is submitted that the Complainant’s delay in lodging her complaint was not reasonable and an extension of time should not be granted.

The failure to notify the Complainant of promotional opportunities affected not only the Complainant but also other women and men on other forms of leave, including annual and sick leave. While the Respondent accepts that the failure to notify the Complainant of a promotional opportunity during maternity leave is capable of constituting discrimination on the gender ground, the Respondent submits that the failure to notify the Complainant of a promotional opportunity whilst she was on annual leave, in circumstances where the Respondent failed to notify men of promotional opportunities in the same circumstances, is not capable of constituting discrimination on the gender ground: Brown v Rentokil C-394/96 [1998] ECR 1-4185.

In a further submission dated 12 December 2018, the Complainant makes for the first time, the argument that her complaint relates not only to the failure to inform her of the promotion competitions in question, but also the failure to facilitate her in applying for the positions in January 2018. The Complainant now asserts that the latter was a further occurrence of discriminatory treatment which is encompassed by her claim. However, this alleged instance of discrimination amounts to no more than the rejection of the Complainant’s internal complaint regarding the failure to notify her of the promotional competitions whilst she was on leave. The Respondent therefore submits as follows:

(a) The refusal to allow the Complainant to facilitate in applying for the positions in January 2018 was not a fresh or new discriminatory act and

(b) In the alternative, and without prejudice to the foregoing, the alleged failure to take the opportunity to facilitate her in applying for the positions was not the subject matter of the claim in March 2018 and is not before the Adjudicator.

I note that it is the Respondent’s policy to endeavour to notify all personnel on all forms of leave of promotional opportunities.