EDA1919

This is a double appeal by G4S Secure Solutions (Ireland) Limited appealing the substantive decision and Karen Kelly appealing the quantum given in decision ADJ-00014455 of an Adjudication Officer in a claim by Karen Kelly that her employer discriminated against her when they refused to let her return following maternity leave to the post she had held prior to going on maternity leave. The Complaint was made pursuant to the Employment Equality Acts 1998-2015 (the Act).

The Adjudication Officer found that the complaint was well-founded and awarded Ms Kelly compensation in the amount of €11,602.50.

In line with the normal practise of the Court, the parties are referred to in this Determination as they were at first instance. Hence, Ms Kelly is referred to as the Complainant and G4S Secure Solutions (Ireland) Limited is referred to as the Respondent.

Facts

The material primary facts of this case are not in dispute and can be summarised as follows;

The Complainant was employed by the Respondent since 22^ndJuly 2014 on a contract that stated she would be primarily based on the Bristol-Myers Squibb (BMS) site in Swords.

In March 2015 the Complainant was offered and accepted a contract of indefinite duration.

The Complainant worked a forty-hour week, her hourly rate was €11.05, and she received an additional payment of €50 per week.

In February 2017 the Complainant informed the Respondent that she was pregnant and in August 2017 the Complainant commenced her maternity leave. The Complainant was due to return from her maternity leave on the 5^thMarch 2018 to her existing post in the BMS site.

On the 3^rdMarch 2018 the Complainant was advised by the Respondent not to attend the Swords site on the 5th March 2018 but to attend the Respondent’s head office in Ballymount for a meeting. At the meeting on the 5^thMarch the Respondent informed the Complainant that she would not be able to return to the BMS site as the client had requested that she would not return.

The Complainant was offered an alternative position of a three-month contract working in the head office in Ballymount which was later extended to a six-month contract.

The Respondent did not make any other offers to her relating to suitable alternative positions.

Respondent stopped paying the Complainant with effect from the 16^thApril 2018.

The Complainant in and around June 2018 requested her P45. The P45 was not supplied to her until after the Adjudication Officer hearing in December 2018.

Neither the Respondent nor the client had ever raised any issues with or about the Complainant prior to her going on maternity leave.

Position of the parties

The positions of the parties can be summarised as follows: -

Complainant’s case.

On these facts it was submitted on behalf of the Complainant that she was discriminated against within the meaning ascribed to that term under section 6 (2) (a) of the Act in that the Respondent did not comply with its statutory obligations under section 26 and or section 27 of the Maternity Protection Act 1994. It is the Complainant’s case that refusing to allow her return to her job or a suitable alternative position following her maternity leave amounts to discriminatory treatment on the grounds of gender. The Representative for the Complainant submitted to the Court that but for the fact that the Complainant went on maternity leave she would have continued to work in her job in Swords where she had worked for the previous three and a halve years without difficulty. It was further submitted that offering the Complainant who was a permanent employee a three /six months contract in a location which entailed a 4 hour round trip daily commute could not be considered to comply with the requirements set out in section 27 of the Maternity Protection Act 1994.

The Complainant submitted to the Court that where dismissal is based on one of the discriminatory grounds the Court is not just obliged to take into account the manner and effects of the dismissal but in making an award, to ensure such an award is effective, proportionate and dissuasive. The Court’s attention was drawn to the ECJ case of Von Colson & Kamann v Land Nordrhein-Westfalen [1984] ECR 1891. It was the Complainant’s submission that following the failure of the Respondent to either return her to her original post or provide her with a suitable alternative she had no income which had a detrimental effect on her health and her ability to pay the rent on her accommodation which she then had to leave. These difficulties were exasperated by the refusal of the Respondent to provide her with her P45 which impeded her ability to access social welfare payments.

Respondent’s case

It is the Respondent’s case that the Complainant was not discriminated against nor was she dismissed. It was submitted to the Court by the representative of the Respondent that it was not the Respondent who refused to allow the Complainant back on site it was the Client who had a contractual entitlement to decide who they would accept on site. It is the Respondent’s position that the treatment of the Complainant had nothing to do with the Complainant’s pregnancy or maternity leave and as such does not constitute discrimination under the Act. It was submitted to the Court that as the Complainant was removed from the site at the request of the client who had expressed a preference to retain the male employee who provided cover while the Complainant was on maternity leave, it is clear that the reason for her treatment was unconnected with her pregnancy and therefore was not discriminatory.

It is the Respondent’s case that despite engaging with the Client between the 22^ndFebruary 2018 and the 3^rdMarch 2018 they were unable to get agreement from the Client to allow the Complainant return to her assigned site. As they were unable to place the Complainant on her assigned site through no fault of their own they offered her an alternative position which they submit met their obligations and was provided for under section 27 of the Maternity Protection Act 1994. They further submitted that as no discrimination took place no discriminatory dismissal occurred. It is the Respondent’s submission that the Complainant resigned by requesting her P45.

The applicable law

Discrimination for the purposes of this Act.

6.— (1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where —

(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified insubsection (2)(in this Act referred to as the ‘ discriminatory grounds ’ ) which —

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(b) a person who is associated with another person —

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue ofparagraph (a), constitute discrimination.

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

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

(b) that they are of different civil status (in this Act referred to as “the civil status ground”),

(c) that one has family status and the other does not (in this Act referred to as “the family status ground”),

(d) that they are of different sexual orientation (in this Act referred to as “the sexual orientation ground”),

(e) that one has a different religious belief from the other, or that one has a religious belief and the other has not (in this Act referred to as “the religion ground”),

(f) that they are of different ages, but subject tosubsection (3)(in this Act referred to as “the age ground”),

(g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as “the disability ground”),

(h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”),

(i) that one is a member of the Traveller community and the other is not (in this Act referred to as “the Traveller community ground”).

(2A) Without prejudice to the generality ofsubsections (1)and(2), discrimination on the gender ground shall be taken to occur where, on a ground related to her pregnancy or maternity leave, a woman employee is treated, contrary to any statutory requirement, less favourably than another employee is, has been or would be treated.

Maternity protection Act 1994

General right to return to work on expiry of protective leave.

26.— (1) Subject to this Part, on the expiry of a period during which an employee was absent from work while on protective leave, the employee shall be entitled to return to work—

(a) with the employer with whom she or he was working immediately before the start of that period or, where during the employee ’ s absence from work there was a change of ownership of the undertaking in which she or he was employed immediately before her or his absence , with the owner (in this Act referred to as “the successor”) of the undertaking at the expiry of the period of absence,

(b) in the job which the employee held immediately before the start of that period, and

(c) under the contract of employment under which the employee was employed immediately before the start of that period, or, where a change of ownership such as is referred to inparagraph (a)has occurred, under a contract of employment with the successor which is identical to the contract under which the employee was employed immediately before the start of that period, and (in either case) under terms or conditions —

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

(ii) that incorporate any improvement to the terms or conditions of employment to which the employee would have been entitled,

if she or he had not been so absent from work.

(2) For the purposes ofsubsection (1) (b), where the job held by an employee immediately before the start of the period of her or his absence on protective leave was not the employee’s normal or usual job, the employee shall be entitled to return to work, either in her or his normal or usual job or in that job as soon as is practicable without contravention by the employee or the employer of any provision of a statute or instrument made under statute.

(3) In this section “job”, in relation to an employee, means the nature of the work which she or he is employed to do in accordance with her or his contract of employment and the capacity and place in which she or he is so employed

Right to suitable alternative work in certain circumstances on return to work.

27.— (1) Where an employee is entitled to return to work in accordance withsection 26but it is not reasonably practicable for the employer or the successor to permit the employee to return to work in accordance with that section, the employee shall, subject to this Part, be entitled to be offered by the employer, the successor or an associated employer suitable alternative work under a new contract of employment.

(2) Work under a new contract of employment constitutes suitable alternative work for the purposes of this Act if—

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

(b) the terms or conditions of the contract —

(i) relating to the place where the work under it is required to be done, the capacity in which the employee concerned is to be employed and any other terms or conditions of employment are not less favourable to the employee than those of her or his contract of employment immediately before the start of the period of absence from work while on protective leave, and

(ii) incorporate any improvement to the terms or conditions of employment to which the employee would have been entitled if she or he had not been so absent from work during that period.

(3) For the purposes of this Act one employer shall be taken to be associated with another—

(a) if one is a body corporate of which the other (whether directly or indirectly) has control; or

(b) if both are bodies corporate of which a third person (whether directly or indirectly) has control

Discussion and Determination

The Respondent seeks to rely on the fact that they had a contract with a third party which included a clause that allowed the third-party dictate who could or could not be assigned to the site. It is the Respondent’s submission that that clause was superior to any statutory rights that the Complainant had. The Court does not accept that as a true reflection of the legal position. In the alternative the Respondent sought to rely on section 27 of the Maternity Protection Act 1994 which provides for when it is “not reasonably practicable” for the employee to return to her original assignment. The requirements of that particular section are that, a new contract maybe offered, but that the work must be suitable and appropriate for the employee, the terms or conditions of the contract relating to the place where the work is to be done, and the capacity in which the employee is to be employed “are not less favourable” than those of her previous contract. On the facts of this case the Complainant prior to her maternity leave was based in a location approximately thirty minutes from her place of residence and was on a permanent contract. The alternative work under a new contract offered by the Respondent was to a three month subsequently increased to a six-month fixed term contract in a location that required a four hour round trip daily commute. Based on those facts the Court does not accept that the terms of the contract offered were “not less favourable”. The Court notes that no other option was put to the Complainant at any stage in the process. The Court notes the Respondents assertion that despite the fact that they had stopped paying her in April 2018 and no other alternative work was either considered by them or offered to her that they still considered her an employee until she requested her P45 which they contend was the Complainant resigning from her post. The Court does not accept that in the circumstances set out above that requesting her P45 was an act of resignation by the Complainant.

Determination

For the reasons set out herein, the Court is satisfied that the Complainant was discriminatorily dismissed. The Respondent’s appeal cannot succeed and is dismissed. The Court is satisfied that the appropriate redress is an award of compensation. It is now well settled that an award of compensation for the effects of discrimination must be proportionate, effective and dissuasive. In all the circumstances of this case the Court determines that an award which is fair and equitable should be measured at €51,168 being the maximum amount the Court can award. That amount is for the effects of discrimination and is not in the nature of remuneration.

The Decision of the Adjudication Officer is amended accordingly

The Court so determines.

Signed on behalf of the Labour Court



Louise O'Donnell
FMc______________________
12th June 2019Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Fiona McCarthy, Court Secretary.