ADJ-00016513

Complainant

Respondent

Anonymised Parties

A civil servant

A Government Department

Representatives

None 

Conor Quinn BL instructed by theChief State Solicitor's Office

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00021435-001

29/08/2018

The complainant returned from maternity leave and asserts that she could not continue to breastfeed because of the facilities were not appropriate. She asserts that this amounts to discrimination. She raises other issues regarding her placement with an agency under the auspices of the respondent. The respondent disputes the claim of discrimination.

The complainant outlined that the issues leading to the complaint arise from her return from maternity leave when she was sent to a new role at an agency under the auspices of the respondent. She was placed in a lower role, based in a call centre and working with new civil servants. There were no facilities in the office for her to breastfeed or express. The complainant asked the respondent’s HR representative who said that she could go to the respondent offices. The complainant said that this meant being out of the office for too long. The respondent had also said that she could use a meeting room and that a lock would be placed on the door to secure privacy. This never happened. It was uncomfortable so she eventually stopped and could no longer express.

The complainant said that she had been on secondment with another department, working directly with a senior colleague and the Chair of a constitutional consultative process. Prior to that, she worked in another agency under the auspices of the respondent, reporting to the director. After her return from maternity leave, she was not be able to apply for internal promotions in the respondent when based in the agency. Her pay was also affected.

The complainant outlined that she has since been promoted, arising from a competition in 2016. The complainant outlined that it is important that there are facilities for pregnant people or breastfeeding. They should have put in facilities or moved her to a location where they did. She said that the IT issue lasted for the whole six months and she was taken off mailing lists, meaning that it was difficult for her to do her role.

In questioning, the complainant accepted that her secondment ended during her maternity leave and the respondent had to find her a new role as she did not want to return to her previous role in the respondent. She accepted that it was for the respondent to decide where she worked. The complainant said that there was no follow up to the email of the 14^th February and she had to contact the agency to say she was starting. It was put to the complainant that the respondent’s business need was in the named agency; she replied that she should have been assigned to a more suitable role. She disagreed that there was no impact on her payment or opportunities. It was put to the complainant that she retained the same promotional opportunities and that she has since been promoted.

It was put to the complainant that the agency facilities were overcrowded, and she was to be credited with an hour to accommodate expressing and the use of the respondent offices. It was put to the complainant that the lock of the meeting room door had been fixed; she said that this was not the case. It was put to the complainant that they were told of the lock being installed on the 23^rd May 2018; she said that she was not informed of this.

The complainant accepted that she was not making a claim of victimisation in respect of the IT issues. It was put to the complainant that the IT issued affected many clerical officers and was resolved on the 24^th July; she replied that there was a delay in supplying her with a username, so she was left read the legislation for a month. She was in contact with IT almost every day regarding the IT issues and was not aware if other clerical officers were affected.

In closing comments, the complainant said that being assigned to the agency affected her opportunity to apply for promotional opportunities, but also sideways opportunities, for example overseas. She commented that the respondent is large and varied and this was also about career progression. She said that the email regarding the use of a room had not been sent to her. She had then been expressing in the shed for a couple of months, and it was only by chance that she went to the room. She continued to use the office for a week and did not see that the door was repaired. While the email suggests that her line manager had identified a solution, this was not relayed to her.

The evidence of the Assistant Principal

The Assistant Principal said he worked in HR covering the respondent Department and related agencies. The contract of employment provided that department staff could be transferred to roles within 45km of their previous role. The primary factor is business need. Where an employee is on maternity leave, they would be placed back in their role. In this case, the complainant’s role in another Department had ended so in the normal course, the complainant would have returned to her previous role in the Department. The complainant was assigned according to the Department’s business need and there were many vacancies in the named agency. Seven clerical officers were assigned to this agency in early 2018. While clerical officer roles vary, the core duties are the same, according to a competency framework, for example customer service and administration. The complainant retained the same promotional opportunities and had access to internal and cross-service applications. The complainant’s concern related to the potential move of the agency from the respondent, but there would also be opportunities after the proposed split in 2020.  He said that the complainant has since been promoted in the EO.

It was put to the Assistant Principal that the complainant’s previous role in the Department and the agency were not the same, in particular her level of responsibility; he replied that the roles were the same and both were in regulatory offices.

The evidence of the Executive Officer

The Executive Officer said that she was responsible for looking after new recruits and those returning from leave. She went to meet the complainant and told her that she could take an hour to accommodate breastfeeding. She suggested that the complainant and her line manager come up with a solution. The complainant did not raise any issue after the emails and the Executive Officer took it that this had been resolved. They have provided the extra hour and access to the Department offices.

The evidence of the Higher Executive Officer

The Higher Executive Officer said that she was in touch with corporate services in the agency, who were alarmed that the complainant was using the mews building. The complainant was offered the meeting room, which was block booked for her to use. The agency stated in an email that the lock was repaired on the 23^rd May, but the Higher Executive Officer did not know whether the complainant was informed of this.

In respect of the IT issue, the Higher Executive Officer said that the system appeared to remove the complainant’s information every day. This issue arose when staff changed their name, for example after marriage. This issue was resolved on the 24^th July.

It was put to the Higher Executive Officer that the complainant had difficulties with IT up to when she left in September, for example being left off mailing lists; she replied that the name issue was resolved, and other issues were dealt within a day.

In closing, the respondent submitted that the complainant had not established a prima facie case of discrimination. It relied on section 85A and the Mitchell case. Section 26 of the Maternity Protection Act provided that a woman returning from maternity leave should not have less favourable conditions. The complainant must also show that such conditions would not be imposed on someone who did not go on maternity leave. It relied in the case of Cunningham v Intel regarding the restructuring of a workplace while an employee is on maternity leave. It is not the case here that the complainant was replaced and not able to return to her previous role. The change in conditions related to the ending of the secondment and the complainant’s wish not to go back to her previous role. The respondent then had to find a comparable employment. In Cunningham, it was held that it was the intention of the employer that must be judged.

The respondent said that the complainant has not claimed that her terms and conditions were less favourable than they would have been had she not got on maternity leave. While she has said they were less favourable than before, a comparator employee returning from secondment would be as likely to transfer to the agency.

The complainant has now been promoted so her complaint regarding not having promotional opportunities is not made out. The split of the agency from the respondent has not happened, so she did not lose out on opportunities. The respondent gave uncontroverted evidence that the clerical officer role in the agency was the same and there is no subdivision of clerical officer roles.

In respect of the breastfeeding complaint, the respondent has not breached its obligations under the Circular. The complainant was credited with one hour per day. The respondent sought to accommodate the complainant and showed flexibility. It sought to provide the complainant with options. A lock was placed on the door within two days of the complainant’s grievance. A separate breastfeeding room was not possible. There is no obligation to assign the complainant to an office with appropriate facilities. There was no breach of the Circular and the complainant has not established a prima facie case of discrimination.

The respondent accepted that there were IT issues, but they affected others. While the complainant may have been more significantly affected, this was not related to her gender or her maternity leave. 

CA-00021435-001

This is a complaint pursuant to the Employment Equality Act. The complainant claims discrimination on the gender ground, including with respect to her conditions of employment. The complainant also asserts that she has been discriminated against in being victimised. The respondent denies the claims.

The complainant’s employment as a civil servant commenced on the 10^th September 2007. While mainly with the respondent Department, her tenure is marked by the wide range of roles she occupied under quite different statutory regimes. For the early part of her career, the complainant worked for an arm of the respondent, dealing with national, EU and international law. She later joined an agency in or around its establishment, at a time when this agency was front and centre of dealing with some of the consequences of the economic collapse. The complainant was later seconded to a constitutional consultative process, liaising directly with its Chair and Secretary.

The issues in dispute relate to her time working with an agency under the auspices of the respondent after the end of a period of maternity leave and the end of the secondment. The complainant commenced this role on the 5^th March 2018. The complainant moved to the other agency, also under the auspices of the respondent, on the 29^th September 2018 and was promoted to the EO grade on the 12^th November 2018.

It is fair to say that the complainant has demonstrated flexibility throughout her career. She has worked for the respondent Department, its agencies or another Department over this decade, taking on challenging roles, including at a time of rolling out new legislation.

The complainant returned from maternity leave on the 5^th March 2018 and raised issues regarding the placement at the agency. She raised this by email, for example on the 5^th March 2018. The complainant subsequently consulted her trade union and emailed a grievance on the 27^th April 2018. In this, the complainant raises the level of responsibility assigned to her, stating that this will inhibit her career progression. She highlights the consequences of the agency separating from the respondent Department and the impact on her promotional opportunities. She cites her transfer to the agency and other related grievances and asks for a meeting.

The response sent to the complainant sets out that her letter does not constitute a formal grievance as it relates to a transfer. It stated that there is no agreed timeline for the separation of the agency from the respondent. It stated that access to promotional opportunities is not part of the complainant’s terms and conditions. It accepts that the complainant would not have access to internal transfers once the agency was separated from the respondent, but that she would have access to internal opportunities within the agency.

The complainant sent several further emails raising her concerns, to which the respondent replied. This culminated in the letter of the 18^th July 2018, where the respondent declines to refer a grievance to a mediation officer.

The question is whether not allowing the grievance to proceed amounted to a contravention of the Employment Equality Act. Section 85A of the Employment Equality Act requires that there be facts of such significance to raise a prima facie inference of discrimination. In this case, there is no suggestion that the respondent’s decision not to engage the grievance policy arose because of the complainant’s pregnancy or her return from maternity leave. While I note that the complainant’s grievance raises issues beyond just the transfer, the issues directly related to the return from maternity leave and breastfeeding are peripheral in the correspondence regarding the grievance exchanged between April and July 2018.

While the grievance procedure could have contributed to resolving matters between the complainant and the respondent, the respondent’s refusal to engage the policy does not amount to a contravention of the Employment Equality Act.

Access to appropriate breastfeeding facilities is addressed by the Maternity Protection Act and its denial can be a contravention of the Employment Equality Act. Section 15B(2) of the Maternity Protection Act provides “an employer shall not be required to provide facilities for breastfeeding in the workplace if the provision of such facilities would give rise to a cost, other than a nominal cost, to the employer.” It is settled law that what is nominal cost “will depend on the size of the organisation and its financial resources.” [see Humphries v Westwood [2004] ELR 296]. Circular 31/06 provides additional benefits to breastfeeding mothers until the child is two. I note that the Circular repeats the statutory provision that there is no obligation to provide breastfeeding facilities where this involves more than nominal cost.

In respect of the interplay between the Maternity Protection Act and the Employment Equality Act (and their underlying EU Directives), Recital 24 of the Recast Directive states: “The Court of Justice has consistently recognised the legitimacy, as regards the principle of equal treatment, of protecting a woman's biological condition during pregnancy and maternity and of introducing maternity protection measures as a means to achieve substantive equality. This Directive should therefore be without prejudice to Council Directive 92/85/EEC of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding.”

Section 6 of the Employment Equality Act provides that discrimination arises where a person is treated less favourably on one of the protected grounds, in this case, gender. In Croc’s Hair & Beauty v Ahern EDA 195, the Labour Court held “The jurisprudential principle that discrimination on grounds of pregnancy constitutes direct discrimination on grounds of sex is now codified in Directive 2006/54/EC on the Principle of Equal Treatment of Men and Women (the Recast Directive). This 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 purpose of that Directive.”

Guidance from the HSE and the World Health Organisation points to the benefits of extended breastfeeding to both the baby and the mother, including after weaning. Breastfeeding is intrinsically linked to pregnancy and, therefore, to the gender ground. The protection from discrimination continues for the breastfeeding worker who returns to work after maternity leave. The complainant can therefore assert that she has been discriminated against on the gender ground in respect of her extended breastfeeding, provided, of course, that she shows that she incurred less favourable treatment and meets the burden of proof set out in section 85A.

The evidence was that the agency’s office, to which the complainant was assigned on her return from maternity leave, was a busy and overcrowded facility. The agency’s head count was increasing, and the complainant was one of several clerical officers assigned to the office. When the complainant raised the issue of breastfeeding facilities, the respondent offered a room in its office some distance away. The complainant was facilitated with extra time, per the Circular. The complainant found that walking to the Department office was too disruptive to her working day and could not (to use the complainant’s own words) “hold it in”. She improvised a local solution by using a mews or shed building. This was identified as unsuitable and the agency booked a meeting room. This was not private as the meeting room could not be locked. The respondent outlined that this was repaired on the 23^rd May 2018, but the complainant was not told of this. There is no evidence of any communication between the agency and the complainant directly on this matter. The correspondence between the respondent and the agency was not copied to the complainant. The result is that the complainant did not have access to the meeting room in the knowledge that it was private, restricting her ability to breastfeed/express during working hours.

Given the special protection afforded to pregnancy, including breastfeeding, and while not questioning the bona fides of those involved, the fact of the complainant not having access to a private space to breastfeed is less favourable treatment. It is also a fact of such significance that raises an inference of discrimination. Given the absence of evidence to show that the complainant was aware that the lock issue had been addressed, the presumption of discrimination has not been rebutted.

In respect of this element of the claim, I award redress of €3,000. I note that the complainant said that she wanted to ensure that breastfeeding workers were provided with appropriate facilities. I base the award on the loss and inconvenience she incurred and taking account of the other steps taken by the respondent.

The complainant raised other issues, for example, missing out on emails. While this was certainly frustrating, the respondent set out that there was an ongoing IT issue, meaning that the complainant’s email address was deleted every day. There is no evidence of discrimination on the gender ground in this regard. It has not been established that there was any less favourable treatment in terms of pay or accessing promotional opportunities. I find that the complainant has not demonstrated that the respondent victimised her for raising the discrimination complaint or referring this to the WRC.

CA-00021435-001

To the extent stated above, I find that the complainant has established that there was discrimination on the gender ground, and I award redress of €3,000.

Breastfeeding

Discrimination on the gender ground / special protection for pregnancy