Complainant

Respondent

Anonymised Parties

Customer Services Assistant

A Supplies Company

Representatives

John Keenan JRK Employee Advocacy & Business Support Services

Frank Drumm, BL

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00030040-002

02/08/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00030040-003

02/08/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00030040-004

02/08/2019

The Complainant commenced employment with the Respondent on 15/09/2000 in a full time (39 hours p.w.) capacity. On 16/11/2015 the Respondent agreed to facilitate the Complainant to change her work pattern to part-time (20 hours p.w.) on four hours each day Monday to Friday. The reason for the change was to facilitate the Complainant in relation to family matters that had arisen. The Complainant went on maternity leave on 10/02/2017 and due to return to work on 04/09/2017. Prior to her return she was advised that her part time arrangement would no longer exist and that only a full-time position would be available. The Respondent was unable to facilitate any part time work. The Complainant’s employment ceased on 09/07/2019. The complainant submitted her complaints to the WRC on 02/08/2019.

The Complainant commenced employment with the Respondent on 15/09/2000. She was initially employed as a wholetime Receptionist and she also worked in a number of other roles and departments in the company.   In November 2015 her employment status changed to part-time and she worked as a Customer Services Assistant for four hours each morning on a Monday to Friday basis. This indefinite change was made in agreement with two Directors of the company (Director A and Director B). The reason for this change was that the Complainant’s then three-year-old son was diagnosed with autism and this arrangement facilitated her to manage her son’s home care needs. This arrangement was confirmed in writing to the Complainant by e mail dated 18th May 2017. The Complainant confirmed that this arrangement worked well from 16/11/2015. She commenced maternity leave on 10/02/2017 and she was due to return from this leave on 04/09/2017. She was paid €335.00 per week.

On 01/08/2017 the Complainant received an e-mail from the Respondent which advised here that her part-time position would “cease to exist”. However, a full-time position in the Customer Services area would be made available to her on return from maternity leave.

This unexpected information had a significant impact on the Complainant and as she was under the care of her GP for anxiety related matters prior to this she again attended her GP. Resulting from this her GP considered that she was not fit to resume work and certified her on sick leave. The Complainant provided monthly medical certificates to the Respondent.

She was assessed by her GP in May 2019 and the GP considered her fit to resume work from 06/05/2019 on a part-time basis. The Respondent rejected the GP’s certificate and requested the Complainant to obtain clarification from her GP in relation to her taking up full time employment as her part-time position “no longer exists.”

The Complainant provided a detailed response in which she outlined the very challenging family circumstances in which she found herself. She also outlined that her anxiety was not helped because of the attitude adopted by the Respondent. The Complainant stated that she was never advised that her role was under threat or how it came to be eliminated. She emphasised that due to her family circumstances she would not be able to take up a full-time position. The Complainant also highlighted that she offered to take redundancy as she were aware that other staff were made redundant. In further exchanges the Complainant made her position clear, “The only issue is that I simply cannot commit to a wholetime role. I am willing to take on any reasonable part-time role. Moreover, despite my challenges I am not fit, and readying myself to do so.”

The Complainant had a meeting on 27/05/2019 with a Director (Director A) from the company and the legal representative for the company. The Complainant was accompanied by a family member.   According to the Complainant this meeting was not conducted in a positive manner and she felt that there was no willingness to consider her position.

Following this meeting the Respondent wrote to the Complainant and outlined that there were many organisational changes while the Complainant was on sick leave and that “there would be no part time positions in existence in the Company generally or in Customer Service in particular.”   The letter confirmed as fact “that it will not be possible to make a particular concession to you in relation to only working part-time hours.”   This letter also confirmed that there was a full-time position available and sought confirmation of the Complainant’s position in that regard.

The Complainant responded stating that her family circumstances made it impossible for her to accept any full-time position.   On 18/06/2019 the Complainant received a reply from the Respondent stating that if she did not “intend to return to work in a full-time role, the Company will make available to you outplacement assistance to support you in your endeavours to secure a part-time position in another company.” The Complainant was advised to confirm if she wished to avail of such assistance “as your employment will lapse at that time in the event that you do not avail of the full-time position which had been kept open for you.”

The Complainant responded and reiterated her position in relation to her being unable to take up a full-time position due to her family circumstances. The Complainant rejected the notion that her employment would lapse and outlined her belief “that the Company has decided to terminate my employment on this date.”

The Respondent wrote to the Complainant on 09/07/2019 and confirmed its position in relation to Company reorganisation and that a full-time position was kept open for the Complainant but because she was not taking up this position “your employment has now lapsed.”

The Employment Equality Act 1998

The Complainant is clear that her particular family circumstances were relied upon in order to effect the termination of her employment. There was no doubt that the Respondent was fully aware of her family situation and made the offer of full-time employment in the full knowledge that it would be impossible for her to accept this offer. It was submitted on behalf of the Complainant that her family circumstances were used as a lever to terminate her employment.   This action prevented the Complainant from access to her continued employment and is therefore a breach of her rights under Section 8 of the Employment Equality Act 1998. This act expressly prescribes “family status” as one of the nine grounds on which statute law forbids discriminatory treatment.

The Minimum Notice and Terms of Employment Acts 1973

The Complainant was not provided with any notice period of the termination of her employment and was only advised on 09/07/2019 that her “employment had now lapsed.”   It was submitted on behalf of the Complainant that she had completed almost 19 years’ service with the respondent and under the provisions of

The Redundancy Payments Acts 1967 – 2014

It was submitted on behalf of the Complainant that the Respondent has consistently confirmed that her position was “eliminated” as part of the organisational change. In that context Section 7 of the 1967 Act provided that where an employer ceases a particular activity as a result of a role being eliminated and employee so affected is entitled to a redundancy lump sum payment.   The Complainant offered to have her employment terminated on the basis that the Respondent consistently confirmed that her role was eliminated. She did not receive her statutory redundancy lump sum.

At the hearing it was established that the Respondent wrote to the Complainant on 18th November 2019 offering a return to work on a part-time basis. It was submitted on behalf on the Complainant that this was a cynical exercise on behalf of the Company and was instituted at a time when the Complainant had commended proceedings at the WRC.

The Respondent consents to the name of the Respondent being amended to reflect the name of the employer rather than the trading name that was cited on the complaint form.

The Respondent is a specialist supplies company and operates in a competitive marketplace.   Due to the loss of a major supplies order the company was required to undergo significant changes in order to survive and achieve efficiencies.

The Complainant commenced employment with the Company as a General Office Worker on 18/09/2000.  She worked 37.5 hours per week and on an annual salary of €13,205.28 and paid weekly.   The hours of work are 9.00am to 5.00pm Monday to Friday. The Complainant commenced maternity leave on 10/02/2017 and was due to return to her position on 04/09/2017. Her annual salary at that time was €17,420 as she commenced part-time work during 2015.

On 01/08/2017 the Company wrote to the Complainant to advise her of the changes in the Company while she was on maternity leave and in doing so wanted her to have advance notice of the changes.

The Complainant did not resume work in September 2017 but submitted a series of medical certificates.   Copies of these were provided at the hearing.   The Company engaged with the Respondent at various times in 2018 in relation to her fitness to resume work and confirming the availability of a full-time position for her. The respondent noted that the Complainant declined full time work by e mail dated 20th June 2018 and requested redundancy as her part-time position was eliminated. The Complainant continued to submit medical certificates. Various e mail exchanges took place in relation to enquiring as to when the Complainant would be fit to resume full-time work and that the company could not keep a position open indefinitely. One e mail from the Complainant on 6th May 2019 informed the Company that she would not be returning to work and wished to exit on redundancy. The Company replied and reiterated its position.

A number of e mail exchanges took place and on 14th May 2019 the Company requested a meeting with the Complainant to “discuss the best way forward” and advising the Complainant that she may be accompanied to the meeting. At the hearing it was submitted on behalf of the Respondent that in facilitating a family member to accompany her this was a significant concession as their policy states that a work colleague may accompany employees to any meetings.

The meeting took place on 27/05/2019 and the Complainant was accompanied by a family member. Director (Director A) of the Company and their legal representative attended.   It was submitted on behalf of the Respondent that they took into account that this was a stressful occasion for the Complainant and enquired about her wellbeing given that she was previously certified as having a stress related illness. At this meeting the Company outlined the significant restructuring that took place and a consequence of this was that no part-time position was available. The Company emphasised that these changes were necessary to safeguard the survival of the Company and to ensure that the necessary efficiencies were put in place to enable the Company to compete in a specialised marketplace.

Following this meeting the Complainant was advised that the various points discussed at the meeting were considered and confirmed that no part time position was available but that a full-time position was still available to the Complainant.   The Complainant responded to this communication and stated that she was unable to take up a full-time position in the Company.

It was submitted on behalf of the Respondent that if the Claimant was unable to take up the full time position the Company would offer outplacement support. The Company also asked the Complainant to confirm her decision within 14 days as her employment would lapse at this time.

Further e mail exchanges took place between the Complainant and the Respondent in which their respective positions were confirmed. An e mail from the Respondent to the Complainant on 8th July 2019 confirmed that her employment with the company had now lapsed.

The Respondent outlined that they contacted the Complainant on 18th November 2019 with an offer to return to work on a part time basis. The Complainant responded to this offer “with a cease and desist letter” on 26th November 2019.

The Employment Equality Act 1998

The Respondent denies that the discriminated against the Complainant. The reorganisation affected all areas of the Company and the various changes were necessary to ensure survival and ensure that there were efficiencies that would allow it to provide a seamless service to customers in a very competitive market. The Complainant’s family status was not a concern for the Company and was not a factor that was used in the decision to eliminate part-time roles.

The Minimum Notice and Terms of Employment Acts 1973

It was submitted on behalf of the Respondent that minimum notice does not arise as the Complainant’s employment was not terminated.

The Redundancy Payments Acts 1967 – 2014

It was submitted on behalf of the Respondent that the Complainant’s position was eliminated and there were no redundancies available in the Customer Service area of the Company. It was not an option and redundancy did not arise in this case.

The facts in relation to this case are substantially aligned. The Complainant was employed by the Respondent from 15/09/2000 until 09/07/2019. With the Company’s agreement she moved to part-time work from 16/11/2015 due to enable her deal with demanding family circumstances. The Complainant went on maternity leave on 10/02/2019 with an expected return date of 04/09/2019.

She was advised by the Respondent on 01/08/2019 that as a result of reorganisation within the company her part-time position was no longer available and that a full-time position was available on her return to work on 04/09/2019.

The Complainant was not expecting this and understood that her part-time arrangement was agreed on an infinite basis. She was already in the care of her GP and this development resulted in her GP certifying her as unfit for work for some time.

A request by the Complainant for Redundancy was not granted by the Respondent.

When the Complainant was certified fit to return to work on a part-time basis from 06/05/2019 the Respondent confirmed that it could only facilitate this on a full-time basis.   Both parties remained steadfast in their positions. The end result was that the Respondent determined that if the Complainant did not resume work on a full-time basis her employment would have lapsed. This was confirmed in an e mail to the Complainant on 08/07/2019. The Complainant’s employment with the Respondent ceased with effect from 09/07/2019.

The facts in dispute are:

a)       Was the Complainant discriminated on the basis of family status?

b)      Was the Complainant dismissed?

c)       Was the Complainant’s position made redundant?

CA-00030040-02

This complaint is referred under Section 77 of the Employment Equality Act 1998:

77. – (1) A person who claims –

           (a) to have been discriminated against by another in contravention of this Act,

           (b) not to be receiving remuneration in accordance with an equal remuneration term,

           (c) not to be receiving a benefit under an equality clause, or

           (d) to have been penalised in circumstances amounting to victimisation,

may, subject to subsections (2) to (8), seek redress by referring the case to the Director.

Section 6 of the Act defines discrimination:

6. – (1) For the purposes of this Act, discrimination shall be taken to occur where, on any of the grounds in subsection (2) [in this Act referred to as “the discriminatory grounds], one person is treated less favourably than another is, has been or would be treated.

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

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

           (b) that they are of different marital status [in this Act referred to as “the marital ground”]

           (c) that one has family status and the other does not (in this Act referred as to “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 parentisin 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 or 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 crer resides with the person with the disability.

Section 8 of the Act defines discrimination by employers:

8.— (1) In relation to—

           (a) access to employment,

           (b) conditions of employment,

           (c) training or experience for or in relation to employment,

           (d) promotion or re-grading, or

           (e) classification of posts,

an employer shall not discriminate against an employee or prospective employee and a provider of agency work shall not discriminate against an agency worker.

Section 85 A 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 him/her.   If he or she succeeds in doing so, then, and only then, is it for the Respondent to prove the contrary. The Labour Court has consistently held that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facia case is established by the Complainant. It is only where such a prima facia case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the Respondent.  

In her direct evidence the Complainant was clear that she entered into an arrangement with the two Directors of the Respondent and that this helped her in relation to her challenging family situation. She was also clear that this arrangement was made on an indefinite basis. The Complainant also gave evidence that the first time she was aware that the Respondent proposed to revoke the arrangement was on 01/08/2017 – a month before she was due to return from maternity leave. The Complainant confirmed that she was happy at work and was willing to undertake any role that could be facilitated on the hours that worked well for her and the Respondent prior to her going on maternity leave.

In their submission and at the hearing the Respondent consistently denied that the Complainant was dismissed. It is their position that the Complainant’s employment “lapsed” by virtue of the fact that she did not take up the full-time position. At the hearing the Respondent confirmed that the Complainant was no longer an employee from 10/08/2019. It is clear from the Complainant’s evidence that she did not resign her position and was willing to resume her role on the same terms and conditions that she had prior to her going on maternity leave. I find that the Respondent’s emphasis on the word “lapsed” is meaningless in an employment law context. It is clearly utilized to redirect attention from what the Respondent’s actions and transfer responsibility to the Complainant. The Complainant’s employment was terminated by the Respondent with effect from 09/08/2019.

In the case of Melbury Developments v Arturs Valpetters [EDA0917] the Labour Court while examining the circumstances in which the probative burden operates stated that a 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 on. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn …. the burden of establishing the primary facts lay fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”

From the evidence adduced the core issue stems back to the reorganisation process within the Respondent company. On the facts of this case I have to determine whether a prima facia case has been established and if so, has the rebuttal been sufficient. Applying the test in the Melbury case above I am satisfied that the Complainant has demonstrated sufficient facts that her employment was terminated by the Respondent as a result of this. I am satisfied that the Complainant has established a prima facia case of discrimination on the grounds of family status.

The Respondent relies wholly on the necessity to reorganise matters in the Company to ensure its survival and become more efficient. It was made clear at the hearing that the Respondent did not take the Complainant’s existing agreed terms and conditions into account and did not make any convincing efforts to continue the agreed working arrangements which were agreed with the Complainant and were in place from 16/11/2015 until she commenced her maternity leave on 10/02/2017.   Based on the evidence and extensive documentation provided I am satisfied that the Respondent terminated the Complainant’s employment as a result of her family status.

CA-00030040-03

The definition of redundancy, as set out at Section 7 of the Redundancy Payments Act is the starting point for a consideration of the position outlined by the Respondent.   Section (7) 2 sets out five definitions of redundancy. In this instant case we need to concern ourselves with the definition at Section 7(2).

Section 7 (2) of the Redundancy Payments Act, 1967, states:

For the purposes of subsection (1), an employee who is dismissed shall be taken to have been dismissed by reason of redundancy if one or more reasons not related to the employee concerned the dismissal is attributable wholly or mainly to –

(a)    The fact that his employer has ceased, or intends to cease, to carry on the business in the place where the employee was so employed, or

(b)    The fact that the requirements of that business for employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish.

(c)     The fact that his employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee had been employed (or had been doing before his dismissal) to be done by other employees or otherwise…”

At the hearing it was confirmed by the Respondent that the changes to the Complainant’s role arose as it did not meet the requirements arising from the reorganisation programme.  The Respondent wanted a seamless link between customers and the Customer Services area.

In St Ledger v Frontline Distributors Ireland Limited, UD 56/1994, the Chairman, Mr Dermot McCarthy remarked that redundancy “has two important characteristics, namely, impersonality and change.”   In 2003, the view of then then Employment Appeals Tribunal (EAT) in this and other cases led to the amendment of section 7(2) of the Redundancy Payments Act and the insertion of the statement outlined above which emphasis that redundancy is impersonal and “not related to the employee”. The focus of redundancy must, in the first instance, be on a job. Its purpose is to eliminate a job or to effect change on a job and not the person.

Based on the evidence deduced I am satisfied that the changes resulting from the reorganisation and which created changes in the Complainant’s role did not constitute a redundancy situation and that the Complainant is therefore not entitled to a redundancy payment.

CA-00030040-04

Section 4 of the Minimum Notice and Terms of Employment Act, 1973 states:

(1)    An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.

(2)    The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be –

-          (e) if the employee has been in the continuous vice of his employer for fifteen years or more, eight weeks.

I find therefore that the Complainant is entitled to receive eight weeks pay in lieu of notice.

Having carefully reviewed all the evidence adduced and the in context of the Findings/Conclusions, as set out above, I set out my decisions in relation to each of the Complainant’s complaints as follows:

CA-00030040-02: Complaint seeking adjudication by the Workplace Relations Commission under Section 77 of the Employment Equality Act 1998.

In accordance with Section 79 (6) of the Acts I have decided in favour of the Complainant that she was subjected to discrimination by the Respondent on the ground of family status in relation to the termination of her employment. In accordance with my powers under Section 82 of the Employment Equality Acts I order that the Respondent pay to the Complainant the sum of €38, 840 for the distress suffered by the Complainant the effects of the discrimination had on her. This compensation does not contain any element of remuneration and is therefore not subject to PAYE/PRSI. The award is redress for the infringement of the Complainant’s statutory rights and therefore not subject to income tax as per Section 192A of the Taxes Consolidation Act (as amended).

In accordance with the provisions of Section 82 (1) (e) I also order that staff within the Respondent company who have responsibility for staff management receive appropriate training in its policies on discrimination.

CA-00030040-03: Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967.  I find that the Complainant’s employment with the Respondent was not terminated on 09/07/2019 by reason of redundancy. I find therefore that the complaint under the Redundancy Payments Acts 1967-2012 is not well-founded.

CA-00030040-0: Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice and Terms of Employment Act, 1993. I find that the Complainant’s claim for Minimum Notice is well-founded. Therefore, on that basis, I order the Respondent to make a payment of €2,680 to the Complainant in respect of notice. This payment amounts to the eight weeks’ notice due to the Complainant.   This payment is subject to the normal statutory deductions relating to pay.

Family Status, Discrimination, Redundancy, Minimum Notice