Complainant

Respondent

Parties

Siobhan  Nolan

Gino's Italian Ice CreamGino's Gelato

Representatives

Lars Asmussen B.L. Instructed by Sean Ormonde & Co. Solicitors

ESA Consultants

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-00022903-001

27/10/2018

The complainant began her employment with the respondent in March 2013 on a part time basis, and in due course was promoted to the position of Supervisor.

She became full-time in the course of 2016, and at the end of that year was transferred on promotion to one of the respondent‘s other outlets.

She was at that stage paid €12.00 per hour, or €1920 per month.

The complainant began a period of maternity leave in April 2018, due to conclude on September 30^th 2018.

In preparation for her leave the respondent hired a replacement for the duration; Ms A.

In August 2018 the complainant wrote to the respondent advising of her intention to return to work and expressing an aspiration to work at management level when she did. The respondent replied saying that an area manager would contact her about this on her return.

A few days later the complainant visited the shop she had worked in before her period of maternity leave to learn from its Manager that she (the Manager) would be leaving the company shortly and followed this up with the information that Ms A would be promoted to replace her.

She also confirmed that the company was aware of the complainant’s aspiration to work at management level.

The complainant was upset that she had not been given the opportunity to compete for this position and attributed this to the fact that she was on maternity leave.

She contacted the respondent on August 19^th seeking an explanation as to why this had happened. In response she got a phone call saying that no appointment had actually been made that that Ms A was only in training for the position.

The respondent suggested meeting in mid-September to discuss the complainant’s options, although by that time the position would have been filled. She suggested bringing it forward on that account.

She then got a further phone call enquiring as to her ‘availability’, to which she responded that she was available to return on a full-time basis including weekends.

A meeting which was due to take place between the parties did not materialise, and the complainant received an email on September 13^th seeking clarification as to her return to work date, despite the fact that this was already communicated to the respondent.

On September 20^th she got a message from Ms A inquiring as to her return to work date (although again this was well known to be September 30^th).

It was also clear that Ms A was undertaking some of the complainant’s role in her absence.

The complainant says that MS A was appointed in breach of normal procedure for filling of vacancies and that she was denied the opportunity to compete on the basis of her gender and family status. The company was aware of her return to work date, her aspiration to work at a higher level, and the nature of her availability (i.e. full time).

Despite this the respondent clearly made assumptions about her availability, and this was a result of her family status.

The respondent’s offer to consider the complainant for a future management position does not excuse its discriminatory conduct in denying her access to the position filled in die course by Ms A.

The respondent says that it did not discriminate against the complainant in any way. They are not obliged to promote any employee and where they do it must be based on ‘justifiable reasons’ such as primary skills and experience.

She resigned from her position stating that she had no alternative but to do so and saying that the reason was the failure of the respondent to promote her to the position of store manager.

The complainant contacted the respondent while she was still on maternity leave and enquired as to her date of return to work.

The respondent did ask her whether she would be returning on a full, or part time basis only because its previous experience with other employees, some thirteen in all, was that they had sought to return to work following maternity leave on the basis of different terms than they had prior to their leave

It is accepted that a discussion took place at the same time about the vacancy for the shop manager position.

The respondent says that it had the right to choose who it felt was most suitable to fill the vacancy while the complainant was absent on maternity leave. Ms A was appointed on the basis of her experience.

On the other hand, the complainant’s right to return on the same terms as she left was guaranteed, and to this was added a commitment to place her on a management development programme which would in due course have led to her promotion.

At no stage was she told she would have to accept a lesser role, nor was she denied future promotional opportunity arising from her pregnancy.

In fact, the respondent accepts that the complainant was an excellent worker, and an employee with an unblemished record and would make a very good manager.

She was scheduled to be placed on a management development programme on her return to work and no prima facie case has been established.

The key facts of the situation are set out above and were largely agreed by both sides, although some aspects of the detail of the respondent’s case were less clear.

For example, while reliance was placed on the respondent’s ‘promotions’ system’ and ‘management development programme’ there was no hard evidence that these actually existed outside the minds of the respondent’s witnesses.

As will be seen from the submissions above the alleged discriminatory act lay in what the complainant saw as the failure of the respondent to consider her for the vacancy as manager of the shop in which she had worked prior to her maternity leave but before she had returned from maternity leave.

First, it is clear that the complainant intended to return to work and that this return would be on a full-time basis (including any unsocial hours which might be required).

This is relevant to the extent that the respondent appeared to have difficulty grasping this point and sought repeated clarification of it. It is relevant to the complaint insofar as it is suggested that it may have been a contributory factor in excluding her from consideration from the vacancy as manager in her own shop which occurred before her return.

It is her case that this would then bring it within the scope of the Employment Equality Act as she was on maternity leave at the time.

The final fact is that her interest in promotion (following her return to work) had been clearly communicated to the respondent.

This relatively simple question is clouded by other facts in the case, the central one being her entitlement to consideration for promotion while she continued to be on a period of annual leave.

Then there were the circumstances in which she learned of the vacancy, and the fact that the person who was successful had been brought in to replace her during her period of maternity leave.

In general, the respondent’s handing of the matter displayed a degree of insensitivity. It was something of a HR and communications failure.

For example, the suggestion that the queries regarding the nature of the return to work were motivated by previous experience of post maternity leave needs of employees might be worthy except for the requirements of Section 26 of the Maternity Protection Acts and the explicitly expressed preferences of the complainant.

In respect of the complainant’s aspiration to be considered for a management position references were made at the hearing to various procedures operated by the respondent as part of a sort of ‘management development programme’ into which the complainant would have slotted on her return.

As it turns out any such procedures are not written down anywhere (contrary to what one would expect in a company of this size) and news of their existence came as a surprise to the complainant.

It might have helped if the respondent had explained these more clearly to the complainant in the period leading up to her return to work, if indeed they exist at all. But even if they do not, some intelligible response to the complainant’s expression of interest in this regard would have been helpful.

The respondent says that it intended to have this conversation with the complainant on her return and on September 22nd made it clear that she would return to the same role she left and that a plan to train her as a manager would be put in place. This is understandable given that she was on a period of protected leave.

However, she resigned later that day, and following the resignation the respondent again put to her the option of management training.

Her actions in this regard were precipitate. She resigned saying that she ‘had no alternative but to do so’.

Having ‘no alternative’ is one of the tests in constructive dismissal cases but this means what it says; it is an objective test and it will not suffice as a rhetorical flourish simply to amplify a person’s sense of exasperation or to ramp up a subsequent complaint.

In assessing this alleged lack of alternative I can see no reason why any complaint she wished to make regarding the alleged breach of the Act would have been adversely affected by her return to work; she was not placed at any disadvantage at that point in making a complaint through the grievance machinery, for example.

And, the parties might have worked out a mutually acceptable outcome to the matter. There is not much doubt that the complainant was highly regarded by her employer and as a matter of fact I find that the complainant had several alternatives to resignation and she fails the ‘no alternative’ test.

However, that is all now in the realm of speculation and the issue to be decided is whether the respondent’s actions in proceeding to fill the vacancy while the complainant was on maternity leave represents a breach of the Act on the gender and family status ground.

The issue that arises here is what constraints are placed on an employer in these circumstances in relation to continuing its normal business, and what obligations arise in relation to the person on maternity leave.

In general, life so to speak, goes on in an organisation. People arrive and leave, and promotions and other changes proceed as necessary. There is no general rule conferring specific rights, other than the rights under the Maternity Protection Act of the woman on leave to return to the position she left, unless these arise under the contract of employment, company agreements etc.

Indeed, the status of the complainant is that she was on a period of protected leave, and while she had an understandable eye on the prospect of returning to work some aspects of her engagement with the company before she returned in the weeks before she did, (the visit in person, for example) was undesirable and not in keeping with the intentions of the protected leave period.

Her communication to the company on August 9th, some seven weeks before she was due to return was followed by the personal visit to her place of work a few days later.

It was in the course of this visit that he earned that a vacancy was going to arise shortly thereafter.

Given the timetable of events, and the complainant’s imminent return to work it would have been a simple matter for the respondent to defer the filling of the management position to enable the complainant to compete for it. As already noted, it was an act of some insensitivity not to have done so.

It is hard to believe, given the circumstances that gave rise to Ms A’s presence in the company that the respondent did not anticipate that this would provoke in the complainant a degree of annoyance so close to the date of her return.

The respondent compounded an already delicate situation by seeking to obfuscate and mislead the complainant as to the true status of Ms A’s promotion.

A number of cases were relied on by the complainant.

Grainne Campbell v Bank of Ireland Private Banking DEC 2013-046 concerned a woman who was demoted on her return from maternity leave and is of no assistance to the complainant.

The respondent’s constant questioning and apparent uncertainty over the complainant’s return to work did not, as things turn out threaten her right to return to work on the basis she left. This was not in doubt. As noted above this argument was relied on more to ground the argument that a possible return on a part time basis would render the complainant unsuited for the promotional position. It has no merit.

The complainant relied also on Byrne v Minister for Defence [2017] IEHC 453  by way of a challenge to the view above (although not expressed in those terms) that ‘life goes on’ in an organisation.

In that case the plaintiff succeeded in relation to a promotional opportunity for which she was passed over while she was on maternity leave.

However, there is a very significant difference between the two cases. Captain Byrne claimed that her contract of appointment was subject to Defence Force Regulations and expressly included certain conditions, including fixed period promotion, that is, that she would automatically fall due for promotion after a certain period of service.

She had previously been promoted to Captain on this basis in 2004 and claimed she was entitled to be promoted to commandant in May 2013, having satisfactorily completed nine years’ service in the rank of captain by then, plus various courses, which was the qualifying requirement.

While four of her male colleagues were called before an interview board and promoted in August 2013 (while she was on maternity leave), she was not told of the interview process and was unaware they were being promoted.

While there was a dispute in the case about whether Captain Byrne actually met the eligibility requirements that is not relevant to this case, or to a general situation in which no service based or other contractual entitlement to promotion arises. In Byrne, the case was based on her automatic entitlement to promotion based on her having met certain criteria and under the terms of paragraph 8 (4) of the Defence Forces Regulations A15.

The case was decided on the basis of the “return from maternity leave” provisions of the 2006 directive, intended to ensure implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment.

Accordingly, that case and its ratio may be distinguished from the current case and the generality of situations in which promotions are made while a person is on maternity leave.

I do not think that an employer is obliged to defer all promotional opportunities which may arise and for which a person on maternity leave may have a general eligibility until that person concludes their leave and returns to employment.

The complainant sought to establish (on the basis of Byrne above) some generalised right to be included in consideration for promotions during maternity leave.

I find that Byrne is not authority for such a general proposition which in any even would fly in the face of maternity leave as a period of protected leave.

The further attempt to link the two situations by saying that the complainant was ’immediately next in line’ to the manager’s post, and thereby had some entitlement to it is not sound. There was no system of promotion other than by open interview.

So, while I repeat my view that the respondent’s handling of the matter was insensitive and inconsiderate it was not unlawful and did not breach the Employment Equality Acts.

Accordingly, the complaint fails.

For the reasons set out above I do not uphold complaint CA-000022903-001 and it is dismissed.

Access to promotions while on maternity leave.