Complainant

Respondent

Anonymised Parties

Director of Internal Audit

Property Management Company

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-00018801-001

30/04/2018

The Complainant commenced employment with the Respondent in 2009. Prior to going on maternity leave in October 2016, the Complainant was employed as Director of Lettings & Residential Property.   On her return from maternity leave in April 2017, the Complainant was appointed to the role of Director of Internal Audit. The Complainant asserts that she had no alternative but to accept this position.   The Complainant contends that she suffered poor treatment and job uncertainty after returning from maternity leave and taking on the role of Director of Internal Audit.   The Respondent rejects the complaint.

The Complainant submits as follows:

The Complainant has an Engineering Degree, a Diploma in Property Studies and a Certificate in Foundations of Management. The Complainant commenced employment with the Respondent on 17 August 2009.

The Complainant was originally employed as a letting agent. On 1 April 2014, the Complainant was promoted to Director of Lettings & Residential Property.

Change in job on return from maternity leave

The Complainant returned from maternity leave on 4 April 2017 after having her first child. According to the Complainant, the Chief Operating Officer (COO) informed her that her position as Director of Lettings & Residential Property was to be made redundant. The COO advised the Complainant that the sole redeployment option available to her was that of Director of Internal Audit. On 4 April 2017, the COO provided the Complainant with a Job Profile for the position Director of Internal Audit. While this position was not within the natural skillset of the Complainant, she agreed to undertake this role on 5 April 2017 subject to the provision of further professional training. The Complainant understood she had no other option.

It is submitted the change in role was a sham. While the Complainant was on maternity leave, existing employees filled in for her. In February 2018, the role of Head of Property was created within the Respondent organisation and a new male colleague was recruited to fill the role. The Complainant submits that this position was effectively the same as the one she had held prior to going on maternity albeit under a different title.

Under sections 26 and 27 of the Maternity Protection Act 1994 as amended, the Complainant had a right to return to the same job, or if this was not reasonably practicable, to a job on no less favourable terms and conditions. It is submitted that a breach of that section constitutes discrimination on the ground of pregnancy and therefore discrimination on the gender ground.

Certainly when the Complainant was being moved into the role of Director of Internal Audit, she faced great uncertainty and insecurity, which would not have happened if she continued in the role she successfully held before maternity leave.

A number of weeks following her return from maternity leave, the Complainant agreed to alternate working hours being 07.00 to 09.00 at home and 10.00 to 16.00 in the office. This was agreed with the CEO.

Poor treatment and job uncertainty after returning from maternity leave and after commencing the Director of Internal Audit job

The treatment of the Complainant deteriorated after her return from maternity leave on 5 April 2017 such that the Complainant was being singled out for being a woman who had taken maternity leave and had a child.

The Complainant’s performance in the roles assigned after returning from maternity leave was greatly hampered by the actions of the Respondent:

·      The Complainant was only ever provided with a 2-day audit training course (which was not sufficient to deem her proficient as an Auditor), and further requests for further professional training were ignored by the Respondent.

·      It was agreed with the Complainant that upon acceptance of her new position, the Chief Operating Officer would provide direction in respect of the Complainant’s role and JK would provide administrative support. Both the Chief Operating Officer and JK left their employment with the Respondent and no replacement support was provided.

·      The role was totally different from the role the Complainant held prior to maternity leave. For instance, the Complainant was expected to be skilled in, and knowledgeable of, the vast requirements of meeting strict Quality, Environmental and Health and Safety Standards, which was something not within her skillset and was something she needed support and training with, which was not forthcoming.   She was required to create a Call Centre from scratch without ever having any prior knowledge or experience in the field. She was asked to create training manuals for a software system that was yet to be installed and to which she had not been given access.

·      The Complainant did not receive job descriptions or Key Performance Indicators (KPIs) for the role of Head of Operations or Operations Director or Internal Audit & Operations.

·      Instead of being encouraged and supported in settling into a new role, the Complainant found herself on a Performance Improvement Plan (PIP).

On 5 July 2017, the Complainant was awarded a bonus of €5,000 indicating at the very least that the Complainant was meeting expectations. In July 2016, she was awarded a bonus of €15,000.     In July 2015, she was awarded a bonus of €6,000.

On 27 November 2017, the Complainant met with an external HR Consultant employed on behalf of the Respondent. She was informed her title was being amended to “Head of Operations” and that additional responsibilities would attach to this role. She was told that she would be provided with a formal job description to include KPI’s and new responsibilities. The Complainant noted that she would consider the new position subject to the receipt of the job description and employment package. The Complainant did not receive a job description or KPIs after this date.

On 11 January 2018, the Complainant met with the CEO, and the external HR Consultant to discuss the proposed change of role to “Operations Director”. The CEO provided the Complainant with a draft outline of the “Core R&R” duties and further advised that she would be provided with an official role profile to include KPI’s. The Complainant never received this.

During the meeting the CEO criticised, belittled and demeaned the Complainant in her role as Director of Internal Audit. The CEO stated that the Complainant was “not a good leader” and that she had “complained about not receiving equal pay to other SLT [Senior Leadership Team] members” however, she did not warrant equal pay as she did not “perform as well as them so it shouldn’t be expected”. The CEO further asserted, without basis, that the Complainant was “unpredictable”, that she needed to “speak up for herself” and that other employees agreed with this sentiment although the CEO did not identify who such other employees were or what exactly they said or were alleged to have said. The Complainant had never been subject to any disciplinary proceedings and has excellent feedback and appraisals. At no point were any of these issues put to her in a formal capacity nor were sufficient details provided for the Complainant to respond in accordance with natural justice. Instead, it is quite clear these comments were being used to belittle, humiliate and bully and create a toxic work environment for the Complainant to put up and endure with no redress. It was extremely upsetting for the Complainant and made her feel nervous as to her future.

On 15 January 2018, the CEO informed the Complainant that she was to be segregated from the other SLT members and would be relocated to a desk facing the CEO’s office. This led to the Complainant feeling isolated and the Complainant believed it was so the CEO could monitor her.

On 4 April 2018, an SLT meeting was attended by the CEO and 7 others from the SLT team. The CEO mocked a suggestion the Complainant made at the meeting in front of the 7 others by saying “you do not know what you are at”. The Chief Finance Officer (CFO), criticised the Complainant for not having a particular ISO Transition Project Plan in place. The CEO and the CFO said in front of the entire SLT that it was poor performance on the part of the Complainant not to be prepared to present the Project Plan regardless of the fact that she had no prior notice. The Complainant was extremely stressed and upset following this meeting. Colleagues noted with concern the unreasonable treatment and were concerned for the Complainant.

Following the meeting on 4 April 2018, the CEO invited the Complainant to a one-to-one meeting wherein the CEO criticised the Complainant for not being prepared in the previous meeting and queried why the Complainant’s performance was so poor. The Complainant tried to justify herself but the CEO dismissed the Complainant’s obvious concerns, and said the following words or words to the following effect:

“Why are you here if you do not feel valued. You are a director and should know as to what needs to be done… I do not trust that you are working your requisite hours. You are distractedalthough you only worked on two projects… I am doing you a favourby permitting you to work your agreed contractual hours in the office of 10am to 4:30pm to accommodate for your commute and family arrangements. “

The Complainant indicated that she felt the only option she has was to leave. It was the third meeting in a row where she had been savagely criticised. It was agreed that the meeting would reconvene on the morning of 5 April 2018.

On 5 April 2018, the Complainant met with the CEO and advised that on reflection she did not want to leave her position. The Complainant provided the CEO with a list of duties compiled by the Complainant in response to the CEO’s claims that she was only operating on two projects. The CEO dismissed these other tasks as being “just filler”. The Complainant indicated she had no job description or KPIs for the new role. The CEO continued to criticise the Complainant’s performance and said “I thought I could trust you”. The Complainant questioned as to what she meant. The CEO informed the Complainant that she was “pathetic and childish and that of course it means I do not trust you”. The CEO claimed the Complainant was not completing enough work. The Complainant was told she would now be placed on a Performance Improvement Plan (PIP). The Complainant was shocked at the CEO’s disparaging statements and asked how she could reasonably assert to measure her performance without ever clarifying the Complainant’s current role as ‘Head of Operations’ or ‘Operations Director’ or ’Internal Audit & Operations’. When the Complainant sought to address the statements and inappropriate treatment inflicted during the SLT meeting on 4 April 2018 the CEO responded aggressively stating “oh for God’s sake [Complainant], is this a complaint?”.

On 6 April 2018, upon the CEO’s request, the Complainant provided the CEO with a complete list of all the projects she was instructed on. On 9 April 2018, the CEO emailed the Complainant again criticising the Complainant’s work and said that the Complainant had not completed enough work.  

On 11 April 2018, the CEO met one-to-one with the Complainant. She presented the Complainant with the initial role profile for Director of Internal Audit along with an additional document containing what the Complainant understood to be additional responsibilities. The CEO said the Complainant had been provided with this before but the Complainant had not.

On 12 April 2018, the Complainant went to her GP and was certified as sick due to work related stress and anxiety. The Complainant returned to work on 3 May 2018.

The treatment the Complainant suffered all happened after her return from maternity leave. She had not been treated like that before her maternity leave. The Complainant believes that the CEO had a particular problem with the Complainant’s flexible working hours. It is submitted that treating the Complainant negatively because she had taken maternity leave was discrimination contrary to Section 6 of the Employment Equality Acts.

The Complainant raised a grievance in a letter from her solicitor on 25 April 2018. In it she raised issues of discrimination on the gender ground. She also raised issues of bullying and harassment contrary to the Safety, Health and Welfare at Work Act 2005.

There was considerable delay in investigating the Complainant’s grievance submitted on 25 April 2018.

The Complainant’s solicitor wrote a letter on 22 August 2018 claiming that the actions of the Respondent were unfair and unlawful. The Complainant followed this up with a resignation on 22 August 2018.

Summary of the Complainant’s direct evidence

The Complainant said that she did a two day auditing course. She had been promised administrative support from the Chief Operating Officer and JK but the Chief Operating Officer left in August 2017 and JK left shortly afterwards and neither of them was replaced.

The Complainant felt that she had insufficient skills to enable her to fulfil her role of Director of Internal Audit. The Complainant said that she had difficulty in managing audits as she was not a financial auditor.

The Complainant disputed that her hours of work had been changed to 10am to 4.30pm in early 2018.   She asserted that her understanding of the arrangement was that she would work 7am to 9am at home before coming into work for 10am. She further asserted that she would regularly work until midnight at home to keep up with her work.

The Complainant maintained that she was informed on 27 November 2017 that she was being considered for the position of Head of Operations which she understood was a significant increase in responsibility. The Complainant asserted that she had been provided with Key Performance Indicators (KPIs) in relation to her role prior to going on maternity leave and in relation to her internal audit role but that she had not been provided with KPIs for the role of Head of Operations.

The Complainant said that on 11 January 2018 the CEO suggested that the Complainant did not warrant an increase in salary as she did not perform as well as the other directors.

The Complainant disputes the Respondent’s submission that the Complainant was aware that the Respondent company was recruiting for the role of Head of Property. She said that she was not aware of the role as it was not advertised internally.

The Complainant said that at the SLT meeting of 4 April 2018, she was criticised by the CFO for not having anything prepared for the meeting in relation to the ISO Transition Project Plan. The Complainant found this difficult to accept as it seemed to be based on the erroneous assumption that because she did not have a particular update, she had nothing done. The Complainant maintained that the difficulty arose because of the lack of clarity around her role. Complainant felt that she was not getting support for the audits from the wider team.  

The Complainant referred to an email which she received from the CEO on 9 April 2018 in follow-up to a one-to-one meeting they had the previous week. In her email, the CEO proposed that the CFO would become the Complainant’s line manager and indicated that this proposal would be discussed in more detail. According to the Complainant, no further discussion took place and even at the time of her departure, she was unclear as to who was her manager.

With regard to the office moves, the Complainant said that she was moved before any other member of staff was moved. She was moved to outside the CEO’s office. She felt that she was moved so that she could be monitored by the CEO.

In cross-examination, the Complainant confirmed that her solicitor’s letter of 25 April 2018 was the first time she had raised concerns about the revised seating arrangements in the office. She accepted that, on foot of her solicitor’s letter, the Respondent allowed her to select her own location within the office.

The Complainant said that she was not given a face-to face review by the CEO in 2018 as had been the norm previously. In 2018, her salary was not reviewed and she did not get a bonus.

The Respondent submitted a document entitled Performance Improvement Plan (PIP) Guidance note to the adjudication hearing. The Complainant said that she had not been furnished with this document in April 2018 when a PIP was first mooted.

The Complainant relies on the following precedents in support of her complaint:

In Gardiner v. Mercer Human Resource Consulting DEC-E-2006 007, the Equality Tribunal found that an employee who returned to work after maternity leave and suffered a diminution in the level of responsibility and range of work she had enjoyed prior to going on leave, had been discriminated against within the meaning of the Employment Equality Acts.

In Tighe v Travenol Laboratories (Ireland) Ltd P14/1986 (reported at (1989) 8 J.I.S.L.L. 124) the EAT said that the words “suitable in relation to the employee concerned” should be interpreted “subjectively from the employee's standpoint, including the general nature of the work which suited her and her domestic considerations”.

In Igen Ltd v Wong [2005] IRLR 258 CA, the English Court of Appeal said that that, because “the facts necessary to prove an explanation would normally be in the possession of the employer, a tribunal would normally expect cogent evidence to discharge that burden of proof”, and that “if the respondent’s explanation is inadequate, it will be not merely legitimate but also necessary for the [tribunal] to conclude that the complaint should be upheld”.

In Phelan v Michael Stein [1999] ELR 58, it was found that a female employee asked about childcare arrangements raised a presumption of discrimination in circumstances where no such question would have been asked of a hypothetical man in a similar position.

Similarly, in McDonald v Clonmel (Healthcare) Limited DEC-E2000-012, the Equality Tribunal were critical about references to childcare arrangements and said that the fact that the Complainant had children to look after was a consideration ”which the interview board took into account and that this consideration would have been regarded as less of a factor if a male candidate was being considered for the post”.

In Maguire v. Aer Lingus 2001 ELR 355 the Complainant was employed as group financial controller. On return from maternity leave she was told her position no longer existed. She was reassigned to other duties for 6 months but there was no clarity about what work would be assigned at the end of that 6 months. The Rights Commissioner found for the Complainant and held that the employer had not provided suitable alternative employment on her return from maternity leave and that the employer had exploited her going on maternity leave.

The Respondent submits as follows:

The Complainant commenced working with the Respondent company in or about August 2009. The Complainant initially held the role of Lettings Agent. Her annual salary was €27,000. In August 2011, the Complainant was promoted to the position of Lettings Property Manager on a salary of €32,000.

When the Complainant commenced work with the Respondent company she did not have a Diploma in Property Studies which she needed for the accreditation with the Society for Chartered Surveyors Ireland (“SCSI”). The Respondent company supported her in obtaining this Diploma both financially and by also giving her time off from work. In June 2012 the Complainant completed her diploma at a cost to the Respondent company of approximately €6,000.

In or around March/April 2014 the Complainant was promoted to the position of Director of Lettings & Residential Property. At that time the Complainant’s salary was increased to €47,500.

By December 2014 the Complainant’s salary had increased to €60,000. This promotion and the various salary increases that she received reflect the fact that the Complainant was considered by the Respondent company to be a very good and talented employee.

In June 2015, the Respondent company engaged an external consultant to assist with training and developing the Respondent company’s Senior Leadership Team (SLT). The consultant also carried out a salary benchmarking exercise. A copy of the external consultant’s report was provided to all members of the Respondent company’s SLT who, at that time, included the Complainant (Director of Lettings & Residential Property), the Director of Facilities Management, the Director of IT, the Director of Finance and the then Director of Asset Management who is now Director of Client Services. Each member of the SLT’s role and salary were specifically median tested. The role of the Complainant i.e. Direct or Lettings & Residential Property established a median of €65,300 (the salary range was between €52,240 and €78,360).

In July 2015, the Complainant’s salary was set at €65,000 as a basic salary which was in keeping with the median established by the consultant’s report. The Complainant was also in receipt of a 5% pension contribution. The Complainant was the only employee who was not required to match the Respondent company’s contribution. The Complainant was also in receipt of just under €2,000 worth of gym membership and suit allowances/subsidies. In July of 2015, the Complainant also received a performance bonus of €6,000.

In July 2016, the Complainant’s salary was further increased to €70,000 as a basic salary. This was a significant pay increase a short number of months before the Complainant commenced maternity leave. At that stage the Respondent company was well aware that she was pregnant and due to commence maternity leave shortly. That year, the Complainant also was paid a performance bonus of €15,000. If (as the Complainant alleges) the Respondent was engaged in discrimination against her due to her gender and/or maternity leave it is implausible that the Respondent would have increased her salary and awarded her such a substantial bonus a short number of months before her maternity leave was due to commence.

In October 2016, the Complainant commenced her maternity leave. She returned from maternity leave to work in or around early April 2017.   Throughout the Complainant’s maternity leave she was paid 50% of her salary by the Respondent company. It is noteworthy that the Complainant was the first employee on maternity leave to be paid her salary or a portion of her salary while on maternity leave. It is submitted that it is of great significance that the Complainant received a €3,000 return to work bonus on her return from maternity leave.   This bonus was paid by the Respondent company to encourage the Complainant to return to work after her maternity leave. It is not the action of employer who is accused of gender discrimination to make payments which are not required by law; the payment of a return to work bonus is, in fact, highly unusual in workplaces generally. The Respondent submits that the payment of 50% salary and the return to work bonus does not suggest that the Respondent company was a discriminatory employer.

The Complainant alleges in her written submissions that on her return from maternity leave, she was informed that her position had been made redundant and that the only option available to her was the position of Director of Internal Audit. The Respondent asserts that this is simply incorrect.

In or around the time the Complainant returned from maternity leave, the Complainant had a number of conversations about her role with the Chief Operating Officer. It is undoubtedly the case that while the Complainant was on maternity leave, it became apparent that there was a need for somebody to deal with various compliance matters including ISO accreditations on behalf of the Respondent company. The Complainant was an individual who functioned brilliantly with the Respondent company’s systems and had an engineering mind. It was decided by the Respondent company to create the position of Director of Internal Audit to deal with the compliance and accreditation issues of the Respondent company. The position of Director of Internal Audit was offered to the Complainant by the Chief Operating Officer and was accepted.

The Chief Operating Officer never suggested or advised the Complainant that her role was being made redundant.   On her return from maternity leave, the Complainant could have (if she had wished) returned to the role that she had held prior to commencing maternity leave. The Respondent company rejects any suggestion the Complainant is making that she had no alternative but to take this new role. Indeed, the Complainant’s email to the Chief Operating Officer of 5 April 2017 clearly indicates that the Complainant was more than willing to accept this new position. The email states inter alia:

“I know you need to crack on and get planning and I have made you wait long enough, I would be happy to accept the position of Director of Internal Audit.   I cannot ever refuse a challenge and a change would be good, I hope!

I note that you have advised that the salary would remain the same, for now, but I would like to ensure that I would still retain the same opportunities for salary review, bonus, etc. as my previous role. I would like to have the opportunity for further training in Business Process Management or Six Sigma and Lean Management (or similar) to ensure that I have the proper skills for the role and would be happy to research suitable courses.

Additionally I will not be availing of certain benefits this year, i.e. VHI and gym allowance, so was wondering if there was an option to avail of alternatives?   Anyway we can have chat number 3 if that is easier to cover the above!”

The Complainant’s terms and conditions of employment remained the same. However, her job title and job role changed. Any suggestion that the Complainant intends to make that she was unaware of or confused about her new job/position is rejected by the Respondent.   It is quite clear that by email dated 4 April 2017 the Chief Operating Officer sent a draft role profile to the Complainant for discussion purposes.

By email dated 7 April 2017 the Respondent Company’s CEO wrote to all members of the company by email. The email welcomed the Complainant back from maternity leave and also noted “I am very pleased to announce that [the Complainant] has accepted her promotion and will take up a new role in Director of Internal Audit”.

In the Complainant’s written submissions she suggests that her previous role of Director of Lettings & Residential Property was given to [a new colleague]. She submits that he had the same job but a different title i.e. Head of Property.   This assertion is yet again simply incorrect. The Head of Property commenced employment with the Respondent company in or around February 2018. At that stage the company had particular needs and plans to expand into the build to let sector. The Head of Property came from [another company] and has particular expertise and experience in the sector. It is accepted that members of the Complainant’s former team when she held the role of Director of Lettings & Residential Property ultimately worked with the Head of Property. However, his position was extremely different to the Complainant’s former position.   It is also noteworthy that when the Head of Property commenced working with the Respondent company his starting salary was €72,500. At that point in time the Complainant’s basic salary was €75,000.

The allegation that the Head of Property in some way replaced by the Complainant is not only incorrect, it is also an unfair narrative of events. The Complainant was aware that the Respondent company was recruiting for the role of Head of Property. At no stage did she ask to be considered for this role or apply for same.

The Complainant refers in her written submissions to her uncertainty in her role upon her return from maternity leave.   This is somewhat surprising in circumstances where the Complainant made a presentation to the SLT on 29 June 2017 setting out her Business Plan and objectives as Director of Internal Audit.  

The Complainant alleges in her written submissions that she was only ever provided with a two day audit training course which was insufficient. The Complainant failed to make any reference to the fact that a consulting company were at all times engaged by the Respondent company to provide support and advice to the Complainant in relation to matters of compliance, audit, ISO and were paid fees of approximately €17,500 to specifically support the Complainant in her role. The Complainant also failed to acknowledge the fact that since the commencement of her employment, the Respondent company had paid just under €8,000 in SCSI related course fees and training, paid professional subscriptions for her of just under €6,000,   covered the cost of [named] software training in London for her in the amount of €1,500 and paid for a 2 day management course with IBEC in the amount of €800. The Respondent company also has a formal Education Support Policy and Training Application Forms. It is the Respondent company’s position that there was ample support available to the Complainant both internally (from the CEO and other members of the SLT) and externally and it was always open to her to request formal educational assistance if she felt it necessary.

One of the most extraordinary assertions made by the Complainant in her written submissions is that she was “required to create a call centre from scratch”.   The Respondent company has for many years operated a call centre. It is accepted that, for business needs, the Respondent company was changing the call centre into a contact centre which would be operational 24 hours a day.   However, the Respondent company engaged the services of an external consultant in April 2017 to develop the contact centre and work with the relevant internal personnel including the Complainant.

The Complainant also alleges in her written submissions that she was required to create training manuals for a software system that had not been installed or that she had not been given access to.   The Respondent is at a loss to understand the specifics of the allegations that are being made. The Respondent used and continued to use [named] software. The Complainant herself was very experienced in using [named] software and, in fact, was referred to internally within the Respondent company as a super-user and was the go-to person within the organisation for queries.   The Complainant may have been asked to produce short user guides for the Software software of 3-4 pages – nothing more.

An external HR Consultant was engaged by the Respondent company to engage with and reinvigorate the SLT from in or about October 2017 until December 2017. As part of this exercise, at an SLT meeting on 5 December 2017, each member of the SLT set out, on a board in the room, their own particular roles and responsibilities. The notes from the board were captured and subsequently circulated for review and comment to all members of the SLT. The Complainant did not at that stage identity any gaps in either her capability or training.

The Complainant appears to allege that from in or around late November 2017 onwards, her role and/or title within the Respondent company was changed to Head of Operations/Operations Director.   The Respondent asserts that this is not correct.

The external HR consultant had a number of informal conversations with the Complainant about whether the Complainant would have any interest and/or the ability to take on the role of Head of Operations. The Respondent submits that no employee would be offered a role change and/or a new appointment within the Respondent company without the consent of the CEO of the Respondent Company. The Respondent submits that the CEO never offered the Complainant any such role and/or position within the business.

The Complainant appears to allege that on 11 January 2018, she had a meeting during which the CEO criticised, belittled and demeaned her. She also alleges that the CEO suggested that she did not warrant equal pay within the Respondent company. The Respondent submits that the CEO never criticised, belittled or demeaned the Complainant. Furthermore, the Complainant is suggesting that she had raised the issue of pay with the CEO.  The Respondent submits that this is simply incorrect – no issue of pay was raised at all. Therefore, the CEO did not and could not have made the comments about equal pay which are attributed to her by the Complainant in the Complainant’s submissions.   The CEO does however accept that she may well have stated to the Complainant that she needed to “speak up for herself”. This however was a statement made to encourage the Complainant in her role within the Respondent company.

The Complainant alleges that on 15 January 2018, she was segregated from the other SLT members and was relocated to a desk facing the CEO’s office.

The Respondent submits that in or around this time, having had the office refurbished, the CEO decided to move a number of people within the office of the Respondent company. The CEO had noticed that the management personnel sat together in a cluster. She felt that they should sit together with their own team. At that time, the Complainant who was Director of Internal Audit did not have a team reporting in to her. This was no different to her colleagues the HR Managerand the Head of IT who were also members of the SLT. The CEO felt that it was appropriate for the three members of the SLT Team, who did not have teams reporting in to them, to sit close to each other. It is important to note that at no stage during this move were any complaints raised by the Complainant in relation to this move. The Respondent rejects any suggestion that there was some attempt at segregation.

The Respondent submits the CEO suggested and the Complainant accepted a change to the Complainant’s working hours after her maternity leave. The CEO’s intention was to assist the Complainant and to facilitate her in relation to her family life. This suggestion was made by the CEO in January 2018, a number of months after the Complainant returned from her maternity leave. What the CEO suggested was that rather than trying to be in the office from 9.00am to 5.30pm, the Complainant could work from 10.00am to 4.30pm.     This reduction in hours was not accompanied by any diminution in the Complainant’s remuneration package.   She was not required to work from home. This reflects the confidence that the CEO had in the Complainant’s ability to carry out her function and role in an efficient manner. The fact is that the CEO, acted at all times in a non-discriminatory manner in relation to the Complainant and her role in the Respondent company.

In or around March 2018, a meeting was arranged with the Complainant. Three other members of the SLT were in attendance at this meeting.   Unfortunately the CEO was absent due to ill health but had asked the Director of Finance, who had recently joined the Respondent’s business and had some background and experience in audit management, to attend in her stead. The subject of the meeting was “ISO Transition Project Plan”. During the meeting a list of items to action was discussed and it was agreed that the Complainant would prepare a project plan.  

Every week there is a SLT meeting. At the meeting each member of the SLT reports on the past week and there is an open discussion between team members in relation to various issues. On or about 4 April 2018, such an SLT meeting took place. When it came around to the Complainant to update on her progress, the Complainant was unable to do so/could not make any report in relation to the work done and/or the work to be carried out in the future.   As the Complainant had provided no update at this meeting, the CEO was concerned. She expressed this concern at the meeting but in a respectful way.   The Respondent rejects the assertions made about the conduct of that meeting in the Complainant’s submissions.   The Director of Finance had met with the Complainant in March 2018 and he also expressed concern about the lack of update and progress provided by the Complainant, particularly in circumstances where a very clear set of actions had been agreed in March. The lack of update from the Complainant was compounded by the fact that the Respondent company was due an audit in the near future and therefore it was concerning that the Director of Internal Audit did not appear to be fully and/or properly engaged in her role.

Following on from the SLT meeting on 4 April 2018, the CEO did have a further meeting with the Complainant which was on a one-to-one basis. The CEO expressed her concerns to the Complainant about her lack of preparation for the SLT meeting and the Complainant’s lack of a report to the SLT.   The Complainant’s written submissions suggest that she was “savagely criticised”. The Respondent submits that this is simply not the case. However, the Complainant did indicate that she thought it would be better for her to resign from her role. She indicated to the CEO that she was struggling to deliver on her role.   The Respondent submits that the CEO dealt with this meeting in a compassionate but professional manner and suggested that the Complainant undertake whatever work was necessary that day but that then the Complainant should go home and consider carefully whether she really wanted to resign and what issues there were and if there were issues that they could be discussed the following day.

The following day, the Complainant met with the CEO again and indicated that she had had a change of heart and did not want to resign and needed to continue working. During the course of the meeting, the CEO explained that she had difficulty in seeing any progress on the deliverables associated with the Complainant’s role. She also indicated that the lack of an update or report at the meeting on 4 April was very disappointing. At no stage in any of the meetings with the Complainant did the CEO unjustifiably criticise the Complainant’s performance in her role.

The CEO wrote to the Complainant by email on 9 April 2018 . Her email set out an account of the concerns raised by the Complainant. In consideration of the matters raised by the Complainant, the CEO set out her views on the current projects and responsibilities that the Complainant had. In light of the conversations and the performance concerns that the CEO had, she indicated that she believed a number of “Next Steps” were required. She stated:

“1. I will provide you with a clearly defined role specification for your role, we will then review this together.

2. We will introduce a Performance Improvement Plan (PIP) to assist you with understanding the specific and measurable requirements of you role and to assist the company with monitoring your delivery of those requirements.   As part of the PIP, regular review meetings will be held to ensure progress is made and deliverables are met while also providing you with a regular opportunity to discuss any potential concerns or delays relating to project completion.

3. You have said you do not feel adequately supported in your current role. I have considered this and to address your concerns I am proposing that [the CFO] become your Line Manager. [The CFO] will be heavily involved in company strategies and project work going forward and as such I believe he will be in a strong position to provide guidance and support to you, considering your required deliverables. This will be discussed in more detail with you when we go through the clearly defined job specification”.

By email dated 9 April 2018, the Complainant responded indicating that she would like to take some time to review the email and that she would respond to the CEO in due course. The Complainant was absent from work from 13 April 2018 until 3 May 2018. The Complainant provided medical certification indicating that she was suffering from stress and anxiety.

By letter dated 25 April 2018, the Complainant’s solicitors wrote to the Respondent company. In that letter the Complainant's solicitors notified the Respondent company that the letter should be "treated as a formal grievance raised on behalf of our client pursuant to the company's responsibilities under the Safety, Health and Welfare at Work Act 2005, [the Respondent’s] policy on preventing and dealing with work related stress and bullying/harassment at work policy of which there are several breaches as set out in the policy on page 35".

By letter dated 30 April 2018, the Respondent company wrote to the Complainant suggesting the possibility of mediation.   The letter went on to state:

"failing mediation and given that your grievance relates, in a large part, to the company's principal, [the CEO], I am of the view that the most appropriate course of action is to have your complaint investigated by an external third party. In that regard, I have retained the services of [an external mediator]. [The external mediator] is someone who has had no previous involvement with [the Respondent company] and is not known to [the CEO]."

By letter dated 30 April 2018, the Complainant’s solicitors wrote back attaching a copy of the bullying/harassment at work policy and indicated that consideration would be given to the option of mediation. The letter also sought information about the external mediator.

By letter dated 1 May 2018, the HR Manager of the Respondent company wrote to the Complainant. In this letter, the HR Manager indicated that she intended to correspond directly with the Complainant and not via her solicitor. This intention in relation to correspondence was due to the fact that the original letter from the Complainant's solicitors was a formal grievance. The professional bio of the external mediator was attached to the letter.

By further letter dated 1 May 2018, the Respondent company indicated that it would aim to facilitate the desk move that was requested by the Complainant's solicitors in their initial letter of grievance in April. The letter indicated that they aimed to facilitate this desk move in advance of the Complainant's return to work on 3 May 2018.

By letter dated 2 May 2018, the Complainant's solicitors responded. In the letter of response the Complainant’s solicitors indicated that they found it extraordinary that there was a suggestion that the Complainant's desk would be relocated within the vicinity of the Finance Director. The letter further indicated that the Complainant was happy to consider the proposed external mediator as mediator in relation to the grievance.

By letter dated 2 May 2018, the Respondent asked where the Complainant would like to sit in the office and indicated that the appropriate arrangements would be made in advance of the Complainant's return to work on 3 May.   The letter further indicated that terms of reference in relation to the mediation would be provided.

By letter dated 2 May 2018, the Complainant’s solicitors indicated that the Complainant would accept the relocation of her desk to a particular position marked out on the office layout which was provided. The letter also further indicated that the Complainant wished for confirmation that she would be entitled to be represented during the mediation process. The letter further requested confirmation that if the mediation was unsuccessful that the Complainant would follow the formal investigation procedure set out in the bullying/harassment at work policy.

By letter dated 3 May 2018 the HRManager of the Respondent wrote to the Complainant.   She indicated in that letter that she would facilitate an offsite pre-mediation session between the mediator and the parties involved. She indicated that during those individual meetings, the mediator would explain the process and explore the ground rules and seek to sign an agreement to mediate form. The letter noted that while it was not anticipated that a representative would be required to join this pre-mediation session that should this be requested, it would be reviewed by the Respondent company. The letter went on to provide details of the proposed mediation meeting and indicated that should any party require a representative to attend that they could request same in advance and provide details of their nominated representative. The morning of 11 May was proposed for the pre-mediation sessions to take place.

By letter dated 4 May 2018, the HR Manager of the Respondent wrote to the Complainant enclosing a mediation framework proposed by the external mediator.

The preliminary mediation meetings occurred on 11 May 2018. Following that, the mediation meeting took place on 25 May 2018. However, the mediator who was appointed confirmed by email dated 28 May 2018 to the HR Manager at the Respondent company that the mediation process had been inconclusive.

By letter dated 28 May 2018, the Complainant’s solicitors wrote to the Respondent's HR Manager indicating that they required a formal investigation into the Complainant’s grievance as set out in their letter dated 25 April 2018.

By letter dated 30 May 2018, the HR Manager responded in writing confirming that she was in the process of engaging an investigator.

The following day, by letter dated 31 May 2018, the Complainant’s solicitors wrote to the HR Manager stating that they requested a list of proposed persons together with a bio of their respective qualifications for the appointment of the investigator.

By letter dated 13 June 2018, the HR Manager wrote to the Complainant’s solicitors stating inter alia

"[The Respondent company] have engaged [external HR consultants] with the aim of appointing them to conduct an independent, formal investigation. I have attached a brief bio to this letter relating to their proposed independent investigator.

To ensure confidentiality, the investigation will take place off site. Dates, times and locations will be agreed with all parties in advance and with ample notice, where possible. In advance of any proceedings, terms of reference will be provided and agreed upon by all parties.

Should you agree, we will formally engage the investigator to commence proceedings next week."

The HR Manager notified the Complainant’s solicitors by letter dated 14 June 2018 that the Respondent company had engaged an external investigator to conduct the formal investigation into the Complainant's complaints.

The Complainant’s solicitors, on behalf of the Complainant, wrote on 14 June 2018 expressing surprise that the Complainant had had no input into the appointment of the investigator. The letter further raised various questions in relation to the Respondent's policies and procedures and asked for a copy of the terms of reference for the proposed investigation and confirmation that the Complainant would be entitled to representation during the process.

The HR Manager asked the Complainant’s solicitors if there was any personal objection to the external investigator other than the fact that they had not agreed his appointment. She made this enquiry by letter dated 15 June 2018. She also specified in that letter three policies and the initial letter of 25 April 2018 as documents that she intended to provide to the investigator upon the agreement of the Complainant’s solicitors. These documents were attached to the letter of 15 June 2018.

By letter dated 20 June 2018, the Complainant’s solicitors indicated that they had no view of the external investigator as he was not known to the firm.   The letter went on to state:

"Please be advised that the grievance policy and procedure referenced in your most recent letter is not familiar to our client. We understand that the company's Health and Safety Statement was updated on 3 January 2018. As such, we require the company strictly adhere to the policies and procedures therein contained.

For ease of reference, we endorse for your attention, a copy of the company's grievance procedure which is contained at Appendix 8 of the company's Health and Safety Statement.

We also requested that the investigator formally investigates our client's complaint pursuant to the company's responsibilities under the Safety, Health and Welfare at Work Act, 2005."

The HR Manager responded by letter dated 22 June 2018. In that letter she confirmed that the external investigator would investigate the complaint pursuant to the company's responsibilities under the 2005 Act. She also confirmed that the grievance procedure contained at Appendix 8 of the Health and Safety Statement would be utilised for the purposes of the complaint and the investigation. The letter further noted that the appointed investigator had been tasked with working on the terms of reference for agreement.

Some time passed between the end of June and early July in relation to the draft terms of reference. On 4 July 2018, the HR Manager confirmed to the appointed investigator that the Respondent company was happy to proceed with the draft terms of reference. In the intervening period, the Complainant instituted a number of claims before the Workplace Relations Commission.   Arising out of same, the Respondent company's solicitors wrote on 25 June 2018 and 17 July 2018 to the Complainant’s solicitors.

On 4 July 2018, the investigator sent the draft terms of reference to the relevant parties to review. It is the Respondent company's understanding that the Complainant’s solicitors responded with proposed amendments by email on 9 July 2018.   This email was sent to an address not regularly used by the investigator and was not seen until 11 July 2018 at which point the investigator informed the Respondent company of the proposed changes to the terms of reference. The Respondent company, through its HR Manager confirmed acceptance of the amendments proposed by the Complainant’s solicitors to the terms of reference. This confirmation was provided to the investigator.

By letter dated 24 July 2018, the Complainant’s solicitors wrote to the HR Manager querying the delay in the investigation into the grievance raised by their client.

On 31 July 2018, the investigator confirmed to the HR Manager that both parties i.e. the CEO and the Complainant had accepted the terms of reference and asked if the Respondent company was happy to proceed. The HR Manager confirmed the Respondent company was happy to proceed with the investigation on the same day.

On 1 August 2018, the investigator wrote to the Complainant’s solicitors suggesting meeting dates of 8 and 10 August 2018. The investigator received no response. He wrote again on 21 August 2018 but again received no response.  

On 9 August 2018 the Complainant’s solicitors wrote to the HR Manager of the Respondent company. That letter raised issues inter alia in relation to the Complainant's salary and bonus and queried the basis upon which the company was entitled to place the Complainant on a performance improvement plan.

The HR Manager responded to the queries raised by the Complainant's solicitors on 13 August 2018.

By letter dated 22 August 2018, the Complainant’s solicitors disputed the HR Manager's response and further indicated that due to the company's "undue delay to investigate our client's complaints" that they had advised her of her entitlement to resign.

By email on the same date i.e. 22 August 2018, the Complainant wrote to the Respondent Company indicating that she was resigning from her employment.   Her letter stated:

"I am now at a loss as to how this matter can be resolved when I have fully engaged all internal avenues.   The company's conduct and calculated delay continues to have a detrimental effect on my health and I cannot tolerate further engagement in this type of correspondence where my health is at risk. In the circumstances, I have no alternative but to resign with immediate effect."

The Complainant’s Discrimination Claim

The Complainant alleges that from the date of her return from maternity leave that she was discriminated on two grounds:

·         her position was removed

·         she was treated badly after her return from maternity leave in April 2017

The Respondent asserts that the Complainant was not removed or forced from her position on her return from maternity leave and that the chronology and facts set out above clearly establish this. The Respondent further asserts that the Complainant’s email accepting the position of Director of Internal Audit establishes this definitively.

The Respondent asserts that it is incomprehensible that the Complainant alleges bad treatment on her return from maternity leave. Since April 2017 when she returned she was:

·         paid a bonus of €3,000 as a return from maternity leave bonus

·         paid a bonus of €5,000 in July 2017

·         given a pay increase in July 2017 which increased her basic salary to €75,000

·         offered the opportunity to work reduced hours i.e. 10am to 4.30pm

Furthermore, a few months before the Complainant commenced maternity leave (i.e. when the Respondent was aware she would soon be going on maternity leave) she received a substantial pay increase and bonus in July 2016. She was also paid 50% of her salary throughout her maternity leave. The Complainant was the first employee of the Respondent to get such a payment.   The Respondent asserts that this is clear evidence that the Respondent wanted the Complainant to return to work.

It is submitted that the aforementioned facts are not the actions of a discriminatory employer.

It is submitted that from these facts the Complainant simply fails to raise a prima facia case of discrimination. The Labour Court in DPP v Sheehan EDA0416 held inter alia:

“What the complainant must establish is a factual matrix from which the Court may properly draw an inference that discrimination has occurred.”

It is submitted that the factual matrix in the within case simply does not show any discrimination on the gender ground. It is submitted that the factual matrix in fact shows an employer who is not only encouraging of but incredibly supportive of working mothers.

Direct evidence of the CEO

The CEO strongly rejected the Complainant’s assertion that, on her return from maternity leave, the Chief Operating Officer (COO) had suggested that her previous position was due to be made redundant.

The CEO asserted that the Complainant’s change of role was a recognition that the Respondent’s compliance and accreditation functions need to be improved and given more attention.

The CEO and the COO decided to offer the position of Director of Internal Audit to the Complainant on her return from maternity leave. They considered the Complainant to be really suitable for the role and felt that she possessed the necessary skillset. The Complainant had a technical background and in-depth knowledge of the business. It seemed like a perfect fit.

The CEO viewed the Complainant’s change of role as a promotion and announced it as such in an email to all staff on 7th April 2017. The CEO regarded the Director of Internal Audit role as a significant role which required the Complainant to report independently to the Board of Directors which she had never done previously.

The CEO said that if the Complainant had refused to take up the new role, she could have remained in the role she held prior to going on maternity leave.   The question of the Complainant reverting to her previous role never came up.

The CEO disputes that there was any confusion about Director of Internal Audit role. The Respondent’s financial year ends on 30th June. The Respondent submitted a copy of the Internal Auditing Business Plan for the financial year 2017/2018 which was presented by the Complainant to the SLT and which, the Respondent contends, indicates that she had a very clear understanding of her role.

The CEO said that the Head of Property was recruited in February 2018 to manage a newly emerging asset class of “build to let” and was deemed to be a perfect fit for the ongoing development of the Respondent organisation.   The Head of Property was involved in generating new business which was something that the Complainant did not do when she was Director of Lettings & Residential Property. The CEO asserted that the Complainant could have applied for the position of Head of Property but that she did not do so.

The CEO contrasted the role of the Head of Property with the role of Director of Lettings & Residential Property (DLRP) held by the Complainant prior to her maternity leave. The CEO said as DLRP the Complainant managed a private landlord portfolio which did not involve any development. However, the property market suddenly changed and build to let came to the dominate. The Complainant as DLRP did not do any build to let and, while she was involved in the tender process, she was not responsible for seeking new business.

The CEO pointed out that the Head of Property always earned less than the Complainant during the time they were both working in the Respondent organisation.   The CEO also said that the Head of Property had 25 years’ experience in the property industry.

In relation to the call centre the CEO maintained that the Complainant’s role was a collaborative one and she would have been involved in planning the 24/7 call centre. However, an external consultant was engaged to actually develop and implement the call centre. The CEO felt that the Complainant was asked to lead the call centre process in an SLT context but was not asked to implement it.

The CEO said that the first she heard of the Complainant’s assertion that she had been promoted to Director of Operations was when she read it in the WRC complaint form. The CEO maintained that the external HR consultant did not suggest to her that the Complainant should be promoted to the position of Director of Operations. As CEO of the Respondent company she would have the final say on all promotions.

With regard to the desk moves, the CEO said that an external consultant who had been engaged from February to August 2018 recommended that the SLT no longer sit together but instead recommended that they all sit with their teams.  It was decided that the three members of the SLT who did not have staff – the Complainant, the Head of HR and the Head of IT would all sit together. The Head of HR moved first, then the Head of IT and then the Complainant.

The CEO said that sometime around December 2017 she suggested that the Complainant change her hours to 10.00 to 16.30 as her commute was very long and she had a small child. The CEO felt that the Complainant was highly efficient and organised and that, if she took shorter breaks, she could complete her work in that timeframe.

The CEO asserted that ISO accreditation, for which the Director of Internal Audit was responsible, was absolutely critical to ensure the ongoing viability of the Respondent organisation as accreditation confers a significant competitive advantage. Institutional clients need proof that systems are robust and that the Respondent company is suitably qualified to handle their business.  

The Respondent was scheduled to have an ISO audit in May 2018. The CEO was fully aware that no institutional fund would engage with the Respondent if they failed the audit and that this would have a hugely negative impact on the Respondent company.

The CEO asserted that the Complainant had been performing well in her role and that her performance only became an issue in early 2018.

At the March 2018 SLT meeting, it was agreed that the Complainant would set up project plan to prepare for the forthcoming audits. At the SLT on 4 April 2018, the Complainant was asked for an update on the project plan but was unable to report on the progress made.

The CEO was very concerned when the Complainant was unable to provide an update on preparations for the audit at the SLT meeting on 4th April 2018.   The CEO was also concerned when the Complainant had not arranged for a visit from the external compliance consultants even though she had undertaken to do so in March. The CEO was terrified that the Respondent organisation would not get their accreditation.

On 9th April 2018, the CEO sent a detailed email to the Complainant in which the CEO detailed her understanding of the interactions between the parties up to that date, the Complainant’s current projects and responsibilities and the next steps she believed were necessary. The HR Director explained the options available to her. It was the CEO’s understanding that a PIP was meant to be positive.

According to the CEO, the Complainant promised a response to the comprehensive email of 9th April 2018 but no response was received from the Complainant to that email.

With regard to the Complainant’s annual review in 2018, the CEO said that in light of the interactions she had had with the Complainant in early 2018, she was hesitant about having a one-to-one meeting with her.

The CEO confirmed that all bonuses were discretionary, not contractual.   The CEO strongly refuted the Complainant’s allegation that the Respondent did not pay the Complainant a bonus in 2018 to get back at her.

This is a complaint made pursuant to the Employment Equality Acts. The issue for consideration in this case is whether the Complainant was discriminated against by reason of her gender and/or family status.

In reaching my decision I have taken into account all of the submissions, oral and written, made to me in the course of the investigation as well as the evidence presented at the hearing.

Section 6(1) of the Employment Equality Acts provides that discrimination shall be taken to occur where “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 in subsection (2) ...”.

Gender

Section 6(2)(a) of the Acts defines the discriminatory ground where one is a woman and the other is a man (in this Act referred to as “the gender ground”).

It is well established that discrimination based on pregnancy comes within the remit of gender based discrimination. This is expressly provided for in Section 6(2A) of the Employment Equality Act, in the following manner: “Without prejudice to the generality of subsections (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.”

The entire period of pregnancy and maternity leave constitutes a special protected period as outlined in the European Court of Justice decisions in Webb v EMO Air Cargo (UK) Ltd [1994] ECR 1-3567, Brown v Rentokil Ltd [1998] ECR 1-04185and Dekker v Stichting Vormingscentrum [1990] ECR 1-3941.

In Dekkerthe Court of Justice has made it clear that pregnancy is a uniquely female condition and for that reason any adverse treatment of a woman on grounds of pregnancy is direct discrimination on ground of her gender.

The Labour Court in Trailer Care Holdings Ltd v Deborah Healy EDA128 referred to the fact that –

“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”.

Family Status

Section 6(2)(c) of the Acts defines the discriminatory ground where one has family status and the other does not (in this Act referred to as “the family status ground”).

Family status is defined under section 2 of the Employment Equality Act, 1998 as follows:

“family status” means responsibility—

(a) as a parent or as a person in loco parentis in relation to a person who has not attained the age of 18 years, or

(b) as a parent or the resident primary carer in relation to a person of or over that age with a disability which is of such a nature as to give rise to the need for care or support on a continuing, regular or frequent basis,

and, for the purposes of paragraph (b), a primary carer is a resident primary carer in relation to a person with a disability if the primary carer resides with the person with the disability;”

The Complainant has said that her specific complaint relates to a change in her working hours after her return from maternity leave. The Complainant has stated that any of her work colleagues are the suitable comparators here. However, she did not provide details in relation to the family status or lack thereof of the comparators she wished to use.

Burden of Proof

Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the Complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to her. If she succeeds in doing so, then, and only then, is it for the Respondent to prove the contrary. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the Respondent.

In the case of Melbury Developments and Valpeters (Det. No. EA AO917) the Labour Court stated as follows:

"Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination.”

The Labour Court in the case of Southern Health Board v. Dr Teresa Mitchell DEE 011, considered the extent of the evidential burden which a Complainant must discharge before a prima facie case of discrimination on grounds of gender can be made out. The Labour Court stated that the Complainant must:

“.... “establish facts” from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the Respondent to prove that there was no infringement of the principle of equal treatment.”

In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the Complainant. It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the Respondent.

I note from the Complainant’s evidence that she contends that on her return to work from maternity leave, she was informed that the position of Director of Lettings & Residential Property, which she held prior to her maternity leave, was to be made redundant. The Complainant submitted that she was prevented from continuing to work in the area where she possessed the most relevant experience and skills. The Complainant asserted that she was forced to undertake a completely different role for which she had not received appropriate training.

From the evidence adduced by the Respondent, I recognise that the Respondent’s understanding of what transpired when the Complainant returned from maternity leave is completely at variance with the Complainant’s understanding. The Respondent strongly disputed the Complainant’s contention that she was informed that her previous role was to be made redundant. The Respondent viewed the change of role for the Complainant as a promotion to a position which was key to the well-being of the Respondent organisation. In her new role, the Complainant was responsible for achieving ISO certification which was essential to secure and retain client confidence in the Respondent organisation.

The importance the Respondent attached to the role of Director of Internal Audit was also evidenced by the fact that, in that role, the Complainant reported directly to the Board which was not the case previously.

The Complainant suggested that she was subject to poor treatment and job uncertainty after her return from maternity leave including not being provided with a job description or KPIs for the role of Director of Internal Audit. I note, however, that the Complainant was issued with a draft role profile for the role on 4th April 2017 by the COO and she acknowledged receipt of same on 5th April 2017. On 29 June 2017, the Complainant made a presentation to the SLT on the 2017-2018 Business Plan for Internal Audit, a copy of which was submitted by the Respondent. It appears to me that, despite her assertion to the contrary, the Complainant was very clear about her role and responsibilities.

During her cross examination of the Complainant, the Respondent’s representative referred to the retention by the Respondent of an external HR consultant in late 2017 who was retained to redevelop and reinvigorate the Senior Leadership Team (SLT). As part of her remit, she asked members of the SLT to set out their responsibilities and roles. The external consultant prepared a document entitled “Draft Roles and Responsibilities Review” which was submitted in evidence. The document outlined the responsibilities of each member of the SLT and provided them with an opportunity to identify any gaps. The Complainant did not identify any gaps in her skills or knowledge.   In response to questioning from the Respondent’s representative, the Complainant said that she could not remember pointing out any gaps. If, as she suggested, the Complainant did not possess the necessary skills to carry out the role of Director of Internal, surely this was an opportune time to bring it to the Respondent’s attention.

At the hearing, in response to questioning from the Respondent’s representative, the Complainant agreed that the compliance consultants who had been retained by the Respondent to assist her in her role, provided her with guidance in her role throughout her time as Director of Internal Audit.

I have been provided with a copy of the Respondent’s Education Support Policy and I am of the view that, if the Complainant made a case for additional training, it would have been provided to her. However, she did not do so.

It was unfortunate that the Chief Operating Officer and JK left after the Complainant was appointed to the role and that no replacement line manager was nominated for the Complainant. I accept, however, that the Complainant was provided with training and ongoing external support to assist her in taking on her new role.

I note the Complainant’s assertion that she was promoted to the role of Director of Operations in November 2017 and that she was not provided with a job description or KPIs for this role and that this created a difficulty for her in fulfilling her role. I note that the Respondent disputes the Complainant’s understanding of what transpired and refutes her assertion that she was promoted. In this regard, I note the CEO’s position that if the Complainant was to be promoted, the promotion would have to be approved by the CEO and, in this instance, the CEO only became aware of the alleged promotion when the Respondent received the WRC complaint referral form. I note that when the Complainant was promoted to Director of Internal Audit on her return form maternity leave, the CEO issued an email to all of the Respondent’s staff informing them of the promotion and congratulating the Complainant. I am of the view, that if the Complainant had indeed been promoted to Director of Operations in November 2107, the CEO would have issued a similar email to all staff as she had done previously. As this did not happen, I am inclined to accept the CEO’s version of events. The Complainant’s email of 4 July 2018 to the external investigator where she signs off as Director of Internal Audit is persuasive in this regard.

In relation to the allegation that the Complainant’s location in the office was changed so that she could be monitored by the CEO, I accept the Respondent’s position that the move was made on the advice of an external consultant who recommended that the members of the SLT should sit near to their staff and those members of the SLT who, like the Complainant, did not have staff should sit together. I note that the Complainant did not raise an internal grievance about the move but when she raised a grievance through her solicitor, she was facilitated with her choice of location.

In my consideration of the herein complaint, I have also taken into account the following discretionary payments which the Respondent made to the Complainant before, during and after her maternity leave:

·         In July 2016, before the Complainant went on maternity leave at a time when the Respondent was aware of her pregnancy, the Complainant’s salary was increased from €65,000 to €70,000. She also received a bonus of €15,000.

·         While she was on maternity leave, the Complainant was paid 50% of her salary. She was the first employee of the Respondent organisation to be paid a portion of her salary while on maternity leave.

·         On her return from maternity leave in April 2017 the Complainant was paid a bonus of €3,000.

·         The Complainant was paid a further bonus of €5,000 and received a pay increase of €5,000 in July 2017.

On balance, and after much deliberation, I find that the Complainant did not establish facts from which it may be presumed that she was treated by the Respondent less favourably than a man is, has been or would be. Accordingly, the Complainant did not establish a prima facie case of discrimination on the grounds of gender.

In relation to the family status ground, I find that the Complainant did not adduce any evidence in respect of comparators she chose to support her claim that, by virtue of the change of hours of work, she was treated less favourably than a person who did not have a family status is, has been or would be. Accordingly, I find that the Complainant did not establish a prima facie case of discrimination of the grounds of family status.

Having considered the evidence available to me, I find that the herein complaint is not well founded.

Discrimination of grounds of gender and family status – return to work after maternity leave