Complainant

Respondent

Anonymised Parties

A HR Administrator

A Renewable Energy Company

Act

Complaint Reference Nos.

Date of Receipt

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

CA-00026654-001

28/02/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 18 of the Parental Leave Act 1998

CA-00026742-001

04/03/2019

The Complainant claims that she was subjected to discriminatory treatment by the Respondent contrary to section 6(2)(a) and (c) and section 8 of the Employment Equality Acts 1998 – 2015 on the grounds of gender and family status. The Complainant claims that she did not return to her substantive role after her return from maternity leave and was subsequently replaced in that role. She also claims that the Respondent is in breach of section 15 of the Parental Leave Act 1998 because she was made move to a different role while on parental leave and was not permitted to return to her original role after her parental leave was up.

The Respondent refutes the claims made. It said the Complainant only raised these issues with it prior to taking the case to the Workplace Relations Commission, and it tried to resolve it internally.

The Complainant commenced working with the Respondent on 20 September 2004 with responsibility in HR and Payroll.

The Complainant said that after returning to work in November 2011 she was not returned to her role within the Respondent, another person who had covered her while she was away remained in the role. She said that person “belittled” her, she complained to management about the situation, however nothing was done until 10 months after her return from maternity leave when she was finally reinstated in her role.

In November 2016, she availed of nine months maternity leave and in July 2017 met with the finance manager, Mr. A, and requested to take two days off per week on parental leave on her return to work in September 2017. On her return to work, Mr. A informed her that she could not return to her substantive post in HR during the period of parental leave, as it was a five day a week job, she was instead given a job in Accounts. She said this was the first time this was mentioned to her. She had no training for the role and no duties were assigned to her and she depended on colleagues to assign her tasks from day to day. She said that a performance review was never carried out in March 2018.

In November 2018 Mr. B, the new finance manager, informed her that a full-time contract was offered to the person in HR and Payroll who was covering her position since she returned from maternity leave. She said that at this point she was told had her previous position in HR and Payroll was no longer available to her to return to.

The Complainant said she was offered a full-time position in the Accounts department, she said that she informed Mr. B that she was unhappy with the arrangement and wanted to go back to her previous role in HR and Payroll. She said that Mr. B just ‘shrugged his shoulders and said no’. The Complainant said that she was told that her previous role had changed but she disputes that.

The Complainant said Mr. B wrote to her on 4 February 2019 to inform her of the unilateral changes to her contract of employment in particular her moving to the Accounts department. The Complainant’s Trade Union wrote to the Respondent on her behalf on 7 February seeking to meet to have the matter resolved locally. The Complainant said that the Respondent wrote back to say that there must be a misunderstanding, which would be sorted out locally and it does not recognise the Trade Union. She said that the Respondent also wrote to her and asked to meet.

The Complainant said that she wrote back on 14 February 2019 where she outlined her understanding of the arrangement with the Respondent namely, that she would revert back to her previous position when her parental leave came to an end. She said that the work arrangement in place was just temporary until she returned to a five day a week. She said that she received no response, so she invoked a formal grievance procedure on 28 February 2019 setting out her position, at which time she also lodged her complaints with the Workplace Relations Commission.

The Complainant said that the Respondent wrote to her on 5 March 2019 stating that it was appointing an external HR consultant to investigate the matter against Mr. B. However, the Complainant wrote back through her Trade Union to say that the grievance was not personal to Mr. B that it was against the Respondent and it sought a different investigator as the appointed external HR consultant had a long history of being retained by the Respondent.

A different independent investigator was sourced, carried out the investigation and issued a report with recommendations, which were notified to the Complainant on 4 September 2019. The Complainant said that the independent investigator recommended that she would be offered a more senior role to better reflect her status and duties in line with her role prior to her going on maternity leave. The Complainant said she was offered a role as HR Officer and she accepted the offer, however she was not offered compensation for not having been offered a suitable alternative under the relevant legislation.

Legal arguments

The Complainant said that she was discriminated against by the Respondent on the family status ground and/or gender ground in terms of section 6(2)(a) and 6(2)(c) and section 8 of the Employment Equality Acts. She was removed from her substantive post on her return from maternity leave on two occasions. She has not returned to her substantive post since her return from maternity leave in September 2017, which she claims is influenced by her decision to take her statutory entitlement to parental leave. She said that this is also a breach of section 15 of the Parental Leave Act.

The Complainant claims that giving a full-time permanent contract to a temporary employee to carry out her substantive role is clearly a serious breach and penalisation of her for exercising her statutory rights and entitlements to parental leave. The Complainant said that she disputes the Respondent’s claim that her substantive job has substantially changed. She said that this role is being performed by her replacement. She said the change to her conditions of employment effectively demoted her. She said that she clearly rejected the offer of the alternative position in Accounts and sought to return to her original role and the Respondent was clearly aware of that.

The Complainant said that on her return to work the Respondent made it difficult for her to return to her substantive role. The Complainant said it is clear that the Respondent only moved to create a role for her after she lodged a grievance and following recommendations from the independent investigator and following the lodging of her complaint with the WRC. This, she claims, demonstrates that she was discriminated against on her return to work from protective leave.

The Complainant wishes to rely on the Equality Tribunal decisions in DEC-E 2014/007 Mullen v BCon Communications Ltd and An Employee v An Employer DEC-E2013-142. She also cited the Labour Court decisions in Nail Zone Ltd and A Worker EDA1023 and Karen Kelly and G4s Solutions (Ireland) Ltd EDA 1919.

The Respondent is a company engaged in the area of renewable energy employing circa. 100 people in 2012 to circa. 300 in 2019. The locations in which it operates has also considerably expanded to more diverse areas in Europe.

The Respondent said is was surprised at the claims lodged with the WRC on 28 February 2019 and 4 March 2019 respectively. It said that the Complainant first raised concerns with her alleged removal from her substantive role in HR and payroll in the absence of consultation, changes to her contract of employment, penalisation for exercising her right to parental leave and discrimination under the Employment Equality Acts in a letter dated 7 February 2019. The Respondent sought on 12 February to meet with the Complainant and in a constructive manner, to address the matter directly and discuss “any concerns she may have.” The Respondent said it sought to deal with all issues the Complainant had in an informal manner. When the Complainant raised a formal grievance, an independent investigator, was appointed to investigate her issues. The Complainant was represented by her trade union official throughout.

The Respondent said that the investigator dealt with the grievance related to (a) the Complainant’s return to work in September 2017, after maternity leave, where she was placed in a role in Accounts during a period of parental leave; (b) The performance review of the Complainant in March 2018; (c) the events post November 2018 and (d) the Complainant’s arguments regarding the return of the Complainant to duties in HR.

The investigator issued her report on 16 August 2019 and concluded that (a) The placing of the Complainant in an account’s role following her taking parental leave in September 2017 - on a three day a week basis - was a decision the Respondent was entitled to make and is comprehended by the Parental Leave Act; (b) The maternity leave arrangements in 2017 were complied with; (c) There were communication issues with how the role in Accounts provided to the Complainant in September 2017 was provided to her; (d) There was no breach of the Parental Leave Act post November 2018 regarding the appointment of a former agency employee to a HR role and this did not amount to discrimination; (e) The role held by the Complainant during her parental leave is more junior in comparison and is not a suitable alternative position. The investigator said that there was no discrimination on the family status ground, the investigator said that a hypothetical comparator would be a person of the same family status as the Complainant returning to a post after parental leave, and who would also have responsibility for a child. No discrimination on grounds of gender was found to arise. (f) No evidence of penalisation for having taken parental leave was found.

The Respondent said on receiving the report, it adopted the recommendation that the Complainant be moved to a more senior role within the organisation. This was communicated to the Complainant on 4 September 2019. The Complainant was provided with a role within the HR function to her satisfaction and continues to work in this area.

The Respondent said that prior to February 2019, the Complainant raised no concerns regarding her role involving work with Accounts which was still within the HR function. The area in which the Complainant works is an open plan area with six employees, including the Complainant’s line manager, Mr. B, Finance Manager. The Respondent said that the Complainant did not raise any concerns post September 2017 when she was provided with duties in Accounts including during a standard performance review meeting in March 2018 or in November 2018 when the duties of her role were discussed with Mr. B.

It said that no issues of alleged breaches of the Employment Equality Acts or the Parental Leave Act were raised whatsoever until February 2019. The Respondent maintains that when these matters were raised, it appointed an independent investigator and accepted her findings.

The Respondent said that the complaints are entirely unnecessary, and the issues of the Complainant have been resolved. It said that all of her parental leave requests have been acceded to and she now works on a part time basis (3 days per week) in order to accommodate her personal circumstances. The Respondent has been entirely fair towards the Complainant. It also operates an open-door policy for issues to be discussed and resolved directly and informally.

Preliminary arguments: - Overlap in claims

The Respondent said that there is an overlap in claims advanced by the Complainant under the Employment Equality Acts and the Parental Leave Act. In both claims, the Complainant alleges that she was not permitted to carry out her role while exercising her parental leave in 2017 and was displaced from her role during her parental leave and that unilateral changes to her terms and conditions of employment were made during her parental leave. It said that the Complainant must be required to elect between these two claims as it amounts to an abuse of process for both claims to be maintained, relying on the same set of facts. In many respects, this is similar to the approach adopted by the Labour Court in the decision of A School v A Worker EDA 122 where the Labour Court held that an employee cannot “rely on the same facts to obtain redress under more than one head of liability.” It cited Jahan Company v Power EDA1326, again the Labour Court held a claimant could not litigate claims under both the Maternity Protection Act 1994 and the Employment Equality Acts arising from the same set of facts. The Labour Court concluded that the cause of action that the Complainant may have in the present proceedings were merged in and extinguished by the Decision in her favour under the Maternity Protection Act 1994 and she is estopped by that Decision from seeking to re-litigate that cause of action again.

The Respondent said that the Complainant’s representative has already admitted to that during the external investigation.

Employment Equality Acts -statute barred

The Respondent said the Complainant alleges discrimination on grounds of gender and family status under the Employment Equality Acts, in relation to conditions of employment allegedly arising in the context of not permitting her to return to her substantive position after maternity leave and/or allegedly displacing the Complainant in her employment twice: once in November 2011 and the second occasion in September 2017 and her maternity leave replacement being retained.

In circumstances where the Complainant returned to her employment from her first period of maternity leave in November 2011 and her second maternity leave in September 2017, both are manifestly statute barred by being outside of the cognisable period of 6 months from the date of lodging this claim with the Workplace Relations Commission being 29 August 2018 to 28 February 2019. It said that during this period, the Complainant was not on a period of maternity leave nor returning to work from her maternity leave therefore this claim is statue barred by reason of section 77(5). It said that the Complainant was not covered by the gender ground, as per section 6(2A) of the Employment Equality Acts as she was not on a period of maternity leave during a 6 months period prior to the claim being lodged with the WRC.

In addition, the claim of family status discrimination is also statute barred as this arose in September 2017 when the Complainant was placed dealing with Accounts functions still within the same department. At best, the latest date of discrimination is in March 2018 when the Complainant was made aware that she would remain undertaking Accounts duties post the cessation of her parental leave. Again, this falls outside of the time period in section 77(5). The Complainant raised no concerns or complaints until February 2019 for no good reason and cannot now seek to bring herself inside the time limit when there are inexcusable delays on her part in raising her concerns.

Employment Equality Acts: family status not appropriate ground:

The Respondent said that the Complainant alleges discrimination on grounds of family status on the basis of alleged discriminatory treatment during her parental leave being not permitted to carry out her role whilst exercising parental leave and unilateral changes to her terms and conditions of employment whilst on parental leave. It said that this is a fundamental misunderstanding of the protected ground of ‘family status’ under the Employment Equality Acts.

It said the claim lodged by the Complainant relates to her alleged treatment during parental leave, which prior to September 2019 arises only in respect of children who are aged under 8 years of age as per section 6 of the Parental Leave Act. Parental leave does not, therefore, cover all persons with a family status as persons with children aged over the maximum age of 8 are not entitled to such leave. Therefore, persons who have children aged over the age of 8 (who are covered by the family status ground having responsibility for such children) are in a different position to those with children under the age of 8.

The Respondent said by contrast, maternity leave is specifically brought within the gender ground of the Employment Equality Act by section 6(2A). It said that Parental leave is entirely separate to family status ground and this is clear from it not being brought into the Employment Equality Act and remaining in a separate act, unlike maternity leave. The Respondent said that this demonstrates the misconception of the purported reliance by the Complainant on the ground of family status as the issue she has is with the alleged discrimination on the basis of availing of parental leave, which is not cognisable within the family status ground which covered persons with children, not children of a particular age or having taken specific leave for children under a particular age.

Parental Leave Act misconceived

It said that the Parental Leave Act claim of the Complainant being alleged penalisation under the Act and breach of section 15 in respect of the alleged failure of the Respondent to allow her to return to the job she held prior to her parental leave is fundamentally misconceived. At no time did the Complainant furnish a written notice in writing seeking parental leave as required by section 8 of the Parental Leave Act. This is a mandatory requirement as per section 8 of the Act.

In the absence of the written request seeking parental leave, the Complainant failed to comply with a fundamental statutory condition. In those circumstances she has not been on a period of statutory parental leave within the cognisable period of 6 months prior to the lodging of her claim (being 5 September 2018 - 4 March 2019). It said that by contrast the Complainant provided written notification of her taking extended maternity leave in 2011 and 2017, it said that this evidences that she was aware of the requirement to make a written request to the Respondent.

The written notification is a fundamental pre-condition for a statutory claim as was made clear in the Labour Court decision of Lee v Vaiciulyte DWT10170, where the Labour Court held that where a claimant is not on statutory maternity leave due to failure to comply with a statutory condition, this prevented the operation of the Act entirely. This decision is consistent with the High Court decision of Ivory v Ski-Line Ltd [1989] ILRM 433 and equally applies to the mandatory requirement in section 8 of the Parental Leave Act. In addition, reliance is placed on the decision of Quinn v AIB Investments Managers Ltd r-096584-pl-10/EH where a Rights Commissioner took account that the claimant’s parental leave request did not meet the statutory requirements in rejecting her claims. Therefore, no claim can arise under the Parental Leave Act in circumstances where this statutory requirement was not met by the Complainant. The Complainant was on periods of non-statutory parental leave and not statutory parental leave.

Claims under the Parental Leave Act statute barred:

Section 44(7)(a) of the Workplace Relations Act 2015 provides that a claimant must refer any claims under the Parental Leave Act with a period of 6 months from the date of the occurrence of the dispute.

The Respondent said the Complainant commenced a period of parental leave in November 2017. She was fully aware at that stage that she was undertaking duties in the Accounts area and this was to accommodate her working on a three day per week basis. Therefore, the time limit for this claim commenced in November 2017 and any claim in respect of breaches should have been brought within 6 months of this date, being May 2018. The within complaint was lodged on 4 March 2019, significantly outside of the required time limit.

In respect of the section 15 claim, regarding a return to work, this claim can only arise at the time of the cessation of parental leave. This is clear from the wording of section 15(1) which clearly provides that a right to return to a job held prior to parental leave arises on the “expiration of a period of parental leave”. The parental leave of the Complainant expired during 2018 and the claim was lodged on 4 March 2019 therefore this claim is statute barred.

In respect of penalisation alleged by the Complainant being her terms and conditions being affected by parental leave, this dispute arose in November 2017 and again is statute barred by reason of being lodged outside of a 6-month time period.

Substantive case

The Complainant commenced her employment with the Respondent in April 2004, initially on a temporary basis to undertake administrative duties. In March 2005 she was provided with a permanent contract of employment in the full-time position of HR Administrator.

In April 2011, the Complainant commenced her first period of maternity leave and returned to her employment on 3 November 2011. The Complainant’s salary was paid by the Respondent during this period of ordinary maternity leave by way of top up to the state maternity benefit.

The Complainant returned to her employment in November 2011 and was working on a four day per week basis. She was placed in an alternative payroll position and raised no concerns regarding same. This was to accommodate her parental leave of one day per week. She returned to HR and payroll duties in August 2012. It said that no discrimination was alleged or at all arose from then and in addition the maternity leave claim of the Complainant that she was not permitted to return to her position crystallised in November 2011 when she returned to work post her maternity leave. The Respondent said that no complaint or grievance was raised by the Complainant at this time and it was only when the WRC complaint form was received in February 2019 that this complaint was made.

Maternity leave

It is accepted that the Complainant commenced a period of maternity leave on 11 November 2016 and her ordinary maternity leave ended in May 2017. The Complainant availed of extended maternity leave from the end of May 2017 to 10 September 2017. She returned to her employment on 11 September 2017. Again, any complaint under the Employment Equality Acts on grounds of gender crystallised at that date as that is the end of the maternity leave period of the Complainant.

The Complainant’s duties as at 2016 were in the HR function and she was involved with payroll for the company and issuing of contracts. A colleague worked part time alongside the Complainant dealing with training for employees. The Complainant was, again, paid by the Respondent during her ordinary period of maternity leave by way of top up to the state maternity benefit. It said that when the Complainant met with Mr. A, Finance Manager upon her return in September 2017, she was informed that it was not possible for her to undertake payroll in the HR function due to this being required on a five day per week basis. She was informed that she would be placed working in Accounts (which is still within the HR department) on a temporary basis. Her line manager remained the same and the same software was used as the Complainant used in payroll. This is accepted by the Complainant in her interview with the independent investigator. Therefore, it is clear the Complainant was fully aware that her duties had altered as at September 2017. Yet no complaint was brought by her at this time.

In September 2017, an email was sent to staff within the Respondent notifying her working in Accounts on a part time basis until she returned full time. Again, it maintains that no complaint was made by the Complainant at this time.

The Complainant returned to her role in HR in September 2017 and then immediately commenced a period of parental leave and was allocated alternate duties in Accounts. She undertook Accounts data entry, answered calls from suppliers and handling utility bills. Mr. A left his employment with the Respondent in 2018. Mr. B became the Complainant’s manager in 2018.

Return from Maternity leave/Parental leave/Parental Leave Act 1998

The Respondent said that its payroll process is complex. The Respondent said there was a big increase in staff numbers, and this requires the same person to undertake this roll on a full-time basis. The Complainant alleges she was not furnished with any work in her duties in Accounts, post September 2017. However, that is not accepted by the Respondent and indeed Mr. B, who became the Complainant’s manager in 2018 and sat in the same area as her. He said that he did not see her being idle and no complaints were made by her. He said the Complainant was working in Accounts with Accounts payable, suppliers and invoices-broadly similar to tasks undertaken in Payroll. He was happy with the Complainant’s performance. Indeed, during a standard performance review meeting in March 2018, with Mr. A and Mr. B, the Complainant raised no concerns regarding her duties, workload or allocation of work. She had been working since September 2017 at this stage.

The Respondent points to the Complainant’s performance forms and notes that she did not seek any training in 2017/2018 and rather was happy in her role. She was using the same software package as was used in Payroll. This was a reasonable belief for the Respondent to have as no complaints were received by her.

The Respondent said that there was no breach of the Employment Equality Acts on grounds of gender or family status arising from the allocation of duties to the Complainant as this constituted a reasonable suitable alternative job as within the Maternity Protection Act 1994/Parental Leave Act. The Respondent was entitled to provide alternative duties to the Complainant during her parental leave period from September 2017 for operational reasons. The Complainant knew from March 2018 that it was likely she would be transferred to Accounts duties on a permanent basis as this is referred in the performance development system document created jointly by Mr. A and Mr. B. Yet she raised no complaint at this time.

Performance review

The Respondent refers to where the Complainant alleges that she was informed in March 2018 that she would return to her HR duties when her parental leave ended. This is not the case and indeed in the performance development system document of March 2018, the Complainant was informed that it was likely she would be transferred permanently to Accounts duties. Again, no complaint was raised by the Complainant. The Respondent maintains that the performance development system document entirely undermines the Complainant’s contention that she was informed she would return to her HR duties post of the ending of her parental leave in January 2019 on a full-time basis.

The Respondent said that the performance review document was not completed by Mr. B as he wanted to await the Complainant’s return to full time work in January 2019 (as was envisaged at that time) in order to complete it. Again, no concern was raised by the Complainant at this time regarding its non-completion. Any alleged discrimination would have crystallised at this date in March 2018 and therefore the claim is statute barred.

The Respondent maintains that due to the increase in work of the HR and Accounts department, Mr. B wished to restructure same following him finding his feet post commencement of employment in 2018. It said that other colleagues also had their duties altered at this time. It was a time of high growth within the Respondent in terms of volume of work and areas in which it provided services increasing. It said had the Complainant raised concerns regarding training, non-completion of her performance review or her being placed with duties in Accounts prior to February 2019, this would have been discussed with the Respondent. It said that this is evident from the way in which it sought to meet with her prior to her formal grievance being raised, subsequently appointing an independent investigator to deal with her grievances and its adoption of the recommendation of the independent investigator by way of returning the Complainant to duties of a HR nature.

November 2018-duties discussed

The Respondent said that it is important to note at this stage the Complainant had been working, without complaint, in Accounts duties since September 2017. She had been informed in March 2018 that it was likely she would remain in Accounts duties post the cessation of her parental leave. At the meeting of 21 November 2018, Mr. B discussed her role going forward after his review of the HR and Accounts department. It was not a unilateral change as the Complainant asserts and rather her working on a 5 day per week basis in an Accounts function would be introduced in January 2019 following several meetings. The Complainant raised no objection regarding same but asked that Mr B send an email confirming her duties. This was sent by Mr. B on 13 December 2018 and it was clear it was up for discussion and had been discussed in the meeting of 21 November 2018 in spite of the Complainant’s assertion to the contrary.

The Respondent said it accepts that the employee who covered the Complainant’s maternity leave in 2017 and continued in the HR function on an agency basis became directly employed by the Respondent in November 2018. This was in circumstances where the Complainant had expressed no concern with her duties post September 2017, nor referred to returning to her HR duties in January 2019. In addition, the Respondent said that the HR function role had increased in terms of quantity of staff for payroll and the agency employee became available for appointment. The agency employee is also qualified as a financial accountant and undertakes other work in the area of finance which the Complainant is not qualified for. The Respondent said at a meeting on 10 January 2019 with Mr. B, the Complainant agreed to take on duties in Accounts on a full-time basis and asked to be granted an extension to her parental leave to April 2019, which was granted by the Respondent. The Respondent claims that Mr. B had expected the Complainant to come back to him following her review of his email of December 2018. She did not do so and on that basis the meeting was arranged. She had clearly considered the issue and it was not a unilateral change as the Complainant suggests, she was consulted and agreed to the change. It said that this is reflected in correspondence sent to her on 4 February 2019.

The Respondent said it did not accept the role in Accounts is a demotion, it was still an administrative role and there was no change to her salary.

The Respondent said when the Complainant raised concerns in February 2019, these were investigated, and the Complainant now works in the HR function. It is submitted no discrimination on grounds of gender or family status arises, as alleged or at all, as the person who became directly employed in the HR function is also a woman with children such that gender and family do not arise as less favourable treatment. In addition, availing of parental leave relates to the age of the child, not the fact a person has children. The Complainant has made speculative arguments in her submissions and has failed to provide facts from which discrimination can be inferred as required by section 85A of the Employment Equality Acts.

The Respondent has implemented the recommendation of the Investigator regarding a suitable alternative role in HR. It said that there is no basis for the Complainant to assert a breach of the Employment Equality Acts on grounds of family status and gender. She returned to her position post maternity leave in September 2017, availed of parental leave and was allocated different duties in the same department, raised no complaints regarding same, she was aware as of March 2018 that she would remain in the account’s duties post her return to full time work in January 2019. Her role in HR held prior to September 2017 had significantly increased and a person became available to undertake same on a directly employed basis. The Respondent said that it took steps when on notice of the concerns of the Complainant, namely, a full investigation with an independent investigator and implementation of the independent investigator recommendation, where the Complainant is now undertaking HR duties. It said therefore it can rely on section 15(3) of the Employment Equality Acts, which provides an employer can avoid liability by proving that it took reasonable steps to prevent the particular act of discrimination or that type of act generally. It said that this is similar to the provision in relation to section 14(2) of the Employment Equality Acts regarding sexual harassment.

Penalisation under Parental Leave Act 1998

The Respondent said that the Complainant has provided no evidence of penalisation under the Parental Leave Act. It appears she suggests she was penalised for having availed of parental leave by way of terms and conditions in Accounts being less desirable than her previous duties. The difficulty with that argument is that it ignores the express permission in section 16 of the Parental Leave Act for an employee post parental leave to be placed in a different position when it is not reasonably practicable to provide the original position post parental leave. The Respondent said that there is no evidence of a reduction in her terms and conditions of employment during parental leave.

I have fully considered all the evidence presented to me in written and oral form. The following is my findings, conclusions and decision.

There are a number of issues in relation to the complaints under the Employment Equality Acts and the Parental Leave Act which are intertwined.I have first to determine what the actual complaints are in each case and then consider whether I have jurisdiction to hear and decide on the matters. A number of submissions have been made and I have decided to consider them in sequence under the two separate pieces of legislation.

CA-00026654-001 - Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Acts, 1998 - 2015

Gender/Family status grounds after two periods of maternity leave

The Complainant claims that on her return to employment following her first period of maternity leave in November 2011 and subsequently her second period of maternity leave in September 2017, she found that someone else was doing her job, her maternity leave replacement was retained, and she was in effect side-lined and demoted. This she claims was discriminatory on the gender and family status grounds on her return to work after her protected leave.

Regarding the first maternity leave arrangement the complaint is in relation to her return to work in November 2011 and is based that she returned to work ‘under’, or as an assistant to, the person who had stepped in to fill her role while she was on maternity leave and it took ten months for her to get her job back.

I note that the Complainant commenced a second period of maternity leave on 11 November 2016, which ended in May 2017. The Complainant availed of an extension to her maternity leave from the end of May 2017 until she returned to work on 11 September 2017. I have heard that this is when the Complainant claims that she first learned that she was moving from a HR administration payroll function to an Accounts administration function. Although she had met with Mr. A in July where it was agreed that she would be working a three day a week with two days off on parental leave.

The Respondent disputes that it discriminated against the Complainant on her return to work in November 2011 and in September 2017 on the gender and family status grounds. I note that the Respondent has raised a number of preliminary jurisdictional issues in its submissions that, although it refutes that it ever discriminated against the Complainant, the complaints here are statute barred as they are outside of the cognisable period of 6 months from the date this claim was lodged with the Workplace Relations Commission. It claims that that 6-month period was from 29 August 2018 to 28 February 2019. It said that during this period, the Complainant was not on a period of maternity leave nor returning to work from her maternity leave thus the claim is statute barred by reason of section 77(5).

The Relevant Law

Section 77(5) of the Act, as amended, provides inter alia the following:

“(5) (a) Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.

(b) On application by a complainant the Director General of the Workplace Relations Commission or Circuit Court, as the case may be, may, for reasonable cause, direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and, where such a direction is given, this Part shall have effect accordingly.

(c) This subsection does not apply in relation to a claim not to be receiving remuneration in accordance with an equal remuneration term.

(6) Where a delay by a complainant in referring a case under this section is due to any misrepresentation by the respondent, subsection (5) (a) shall be construed as if the references to the date of occurrence of the discrimination or victimisation were references to the date on which the misrepresentation came to the complainant’s notice.

(6A) For the purposes of this section-

discrimination or victimisation occurs-

if the act constituting it extends over a period, at the end of the period.

if it arises by virtue of a term in a contract, throughout the duration of the contract, and

if it arises by virtue of a provision which operates over a period, throughout the period,

a deliberate omission by a person to do something occurs when the person decides not to do it, and

a respondent is presumed, unless the contrary is shown, to decide not to do something when the respondent either-

does an act inconsistent with doing it, or

the period expires during which the respondent might reasonably have been expected to do it.”

The complaint under the Employment Equality Acts 1998- 2015 was received in the Workplace Relations Commission on 28 February 2019.

Section 77(5) is clear where it sets out the statutory time limits that need to be observed should one deem that they are discriminatorily treated under the Acts. The case law supporting this is well settled. Consequently, a claimant must act within those timeframes in each and every situation unless there is reasonable cause to consider extending that time up to “a period not exceeding 12 months”. However, in the within case that argument was not made out, and even should it have been made out, the applicable time periods for taking the case would still fall outside the statutory time limits for taking a case under section 77(5) of the Acts.

The Complainant claims she was discriminated in November 2011 on her return to work following her first maternity leave. This is clearly statute barred by the time she lodged her complaint in 28 February 2019.

The second maternity leave period terminated on the Complainant’s return to work on 11 November 2017. Here she claims that because she was returning on a three day a week that she did not get her substantive position in HR and payroll back and was instead transferred into Accounts. She claims discrimination on the gender and/or family status grounds accordingly. Again, I am mindful of the dates here. I note that she said that she was telling her manager that she wanted to return to HR and was not happy in Accounts. She explained that this was the second time in her career that this happen on her return from maternity leave. I note that the Respondent does not accept that position and said it was entirely in the dark as to the claim that she was unhappy. Again, as mentioned above in the first maternity protected period, she failed to raise the issue formally with the WRC within the time limit set out in the Acts.

I have not been presented with arguments that support how these instances could be considered now, well after the time limits have passed. No case has been made out to how the WRC could have jurisdiction to consider these historical cases. I note the Complainant said that she outlined her grievances about these two incidences in the months after her return in November 2011 and September 2017. I am satisfied that should the Complainant had seriously considered that she was discriminated at the time of her return to work following protected leave in November 2011 and September 2017 she should not have waited until 28 February 2019 to make her case.

In that regard I take guidance from the Labour Court in Business Mobile Security Ltd t/a Senaca Limited v John McEvoy EDA 1621, where the Court dealing with a similar situation as the within case here, and the effect of the statutory time limits where a Claimant chose to take other remedies, “The Court has examined the facts of the case as outlined in the submissions of both parties. The Court finds that the last act of discrimination occurred no later than August 2013. Thereafter the Complainant had a choice to make as to whether he would pursue the matter through the statutory remedies available to him or would avail of an internal grievance procedure in an effort to secure a resolution. He chose the latter”. I also note that in the Labour Court decision in Brothers of Charity Services Galway v Kieran O’Toole [EDA 177] where the Court held choosing the internal procedure does not in itself extent statutory time limits, “The Court cannot accept that deploying the Respondent’s internal procedures operated to prevent the Complainant from initiating the within complaints within the statutory time limit provided under the Acts.”

I find that this element of the Complainant’s claim is statute barred.

Family status ground and parental leave.

The Complainant claims that she was told in November 2018 that she was not returning to her HR and Payroll role and that her replacement cover, while she was on maternity leave, would be offered a full-time position and that her conditions of employment were unilateral changed thereafter whilst she was on parental leave. She claims that all of this was as a consequence of taking her parental leave and thus is discrimination under the family status grounds.

The Respondent claims that there is a distinct difference between the different treatment of staff while on parental leave as permitted under the Parental Leave Act, and that of discrimination under that family status ground under the Employment Equality Acts. Parental leave does not cover all persons with a family status, as persons with children aged over the age of 8 are not entitled to such leave. However, it does not affect their family status under the Employment Equality Acts.

The Respondent said by contrast, maternity leave is specifically brought within the gender ground of the Employment Equality Act, by section 6(2A), whereas parental leave is entirely separate to family status and this is clear from it not being brought into the Employment Equality Acts and remaining in a separate act, unlike maternity leave.

The Relevant Law

Section 6 of the Act reads,

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

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

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

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

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

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

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

…

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

Section 2 defines “family status” as “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 claims that the act of discrimination occurred in a meeting with Mr. B on 21 November 2018 when the temporary employee who had covered the Complainant’s maternity leave and her parental leave was taken on as a permanent member of staff and was moving into the Complainant’s position on a full-time basis. The Complainant claims that she resisted this change and it amounts to discrimination under the Acts on the family status ground. She has not identified a comparator.

The Respondent said that the Complainant had now worked in Accounts for over a year, she had raised no issue with it about her working there and appeared content. The opportunity to directly employ the agency worker into the company arose. There was a change to the structure of the work with Mr. B being in place for some time and identifying necessary changes in tandem with the increase in workload with the company’s substantial growth. The Respondent said the person who the Complainant claims to have taken her role is of the same gender and family status as the Complainant.

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 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.

In the case of Melbury Developments v Arturs Valpetters EDA0917 the Labour Court, whilst examining the circumstances in which the probative burden of proof 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 upon. 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”.

The consideration here for me is whether the Complainant has established facts that she, as a mother of two children was discriminatorily treated by the Respondent because of her family status as compared to a person who was or would be treated with a different family status to her. I have noted the evidence presented to me and I have heard that she was welcomed back to the work place and resumed on a three day a week taken two days parental leave each week. She continued that arrangement on her request.

I have heard that notwithstanding the difference of opinion as to whether the Complainant had made her feeling of unhappiness known to the Respondent or not, the role in HR and Payroll had changed and it was a five day a week role, that it could not be performed by a person doing a three day a week. The Respondent points to the clear substantial growth in the Company and I have heard Mr. B where he said that he took stock of his new department since he arrived in 2018 and made the changes that he felt were necessary within the organisation that needed to be made. I accept that this evidence as fact.

The Complainant said that she was on parental leave two days a week and this was the reason that her colleague was doing “her role”, was given that role, and that her conditions of employment were unilateral changed whilst on parental leave, which she surmises to be discrimination on the family status ground.

The evidence is that she was working three days a week and unable to fulfil a role that required someone working five days a week. There is no evidence presented that she was moved from the role because of her family status. There was no evidence that the only person allowed to work the role was someone with a different family status than her namely someone without children. In fact, I note her replacement who took up the role has the same gender and family status as the Complainant. I also note that she worked the role previously, which she said had not changed (but this is disputed by the Respondent), between her two maternity periods without any issue.

I have heard the two versions of events for the period in question where the Complainant claims that she was working in Accounts was horribly unhappy and made that known to Mr. B all the time. Whereas Mr. B said he has never known the Complainant to work anywhere but in Accounts and claims he was taken by complete surprise that she had a problem working there. The formal complaint shows a traceable chronology of events, and this suggests the Complainant only raised her issues with the Respondent in February 2019. I see attempts were made to rectify the grievance informally and immediately, and an external investigation arranged in March 2019. The result of the external investigation places the Complainant in a HR position, away from Accounts, she is satisfied with. The Complainant claims that this demonstrated that she was wronged by the Respondent. The Respondent said that there was no discrimination found in that investigation, but it followed the recommendation as it wanted to resolve the grievance. I commend the speedy action of the Respondent here. I would also have thought it could have brought this matter to a conclusion, but it has not.

I note and also accept the argument made by the Respondent that matters relating to parental leave do not simply equate to a matter family status ground per se. The key ingredient here is evidence that a person with a family status is treated less favourably than a comparator with a different family status. That has not been established here and as noted above it is necessary for the Complainant to establish evidence of sufficient significance to raise a presumption of discrimination. The Complainant has failed to do so in this instance.

I find that the Complainant has failed to establish a prima facie case on the family status ground.

CA-00026742-001 - Complaint seeking adjudication by the Workplace Relations Commission under section 18 of the Parental Leave Act 1998

Preliminary matters – overlap off claims

The Complainant claims that her rights were adversely affected by having taken parental leave, which is contrary to section 14 of the Parental Leave Act, in particular that she was not permitted to return to her job following her parental leave (section 15) and she was penalised for “proposing or having exercised parental leave”(section 16A). She claims that this manifested in her not been allowed to return to her original job, placed in a less attractive alternative and permanently transferred from the position.

The Respondent has challenged this case on the grounds of abuse of process, that the Complainant cannot have an overlap of a claim with the same set of facts under the Employment Equality Acts and the Parental Leave Act. Notwithstanding that argument, it also claims that the complaint is out of time and therefore statute barred. It said that the Complainant’s case is misconceived as she was not on statutory parental leave beyond March 2018, and finally that the Parental Leave Act allows for people to be placed in an alternative position when and where that is appropriate after the period of parental leave comes to an end.

The Relevant law

Parental Leave Act 1998 –

Section 8.— (1) When an employee proposes to take parental leave, he or she shall, as soon as reasonably practicable but not later than 6 weeks before the commencement of the leave, give notice in writing of the proposal to his or her employer.

(2) A notice under subsection (1) shall specify the date of commencement of the parental leave concerned and its duration and the manner in which it is proposed to be taken and shall be signed by the employee concerned.

…

(4) Notwithstanding subsection (1), where leave purporting to be parental leave is taken by an employee who is entitled to parental leave but who has not complied with subsection (1) in relation to the leave, the employer may, at his or her discretion, treat the leave as parental leave and this Act shall apply accordingly.

(5) An employer shall retain a notice given to him or her under this section and shall give a copy of it to the employee concerned who shall retain it.

…

(7) Where an employee proposes to take parental leave in respect of a child pursuant to section 7(1)(aa) , then the notice under subsection (1) required to be given by the employee shall, for the purposes of this Act, be treated as —

(a) one such notice if the employee complies with that requirement by giving one notice specifying the 2 periods of parental leave proposed to be taken, and

(b) 2 such notices if the employee complies with that requirement by giving 2 notices each specifying one of the periods of parental leave proposed to be taken,

and the other provisions of this Act (including section 11) shall be construed accordingly.

(8) Where an employee proposes to take parental leave in respect of a child pursuant to section 7(1)(ba) , then the notice under subsection (1) required to be given by the employee shall, for the purposes of this Act, be treated as —

(a) one such notice if the employee complies with that requirement by giving one notice specifying a continuous period of parental leave proposed to be taken,

(b) one such notice if the employee complies with that requirement by giving one notice specifying the periods of parental leave proposed to be taken, or

(c) such number of notices equivalent to the number of periods of parental leave proposed to be taken if the employee complies with that requirement by giving such number of notices each specifying one of the periods of parental leave proposed to be taken,

and the other provisions of this Act (including section 11) shall be construed accordingly.

Section 9.— (1) Where an employee has given a notice under section 8(1) to his or her employer, they shall, not less than 4 weeks before the commencement of the parental leave concerned, prepare and sign a document (referred to in this Act as “a confirmation document”) specifying the date of commencement of the leave, its duration and the manner in which it will be taken.

(2) Where leave is treated as parental leave pursuant to section 8(4) , a confirmation document in relation to the leave shall be prepared and signed by the employer and the employee concerned as soon as may be.

(3) An employer shall retain a confirmation document signed by him or her and shall give a copy of it to the employee concerned who shall retain it.

Section 14.— (1) An employee shall, while on parental leave, be regarded for all purposes relating to his or her employment (other than his or her right to remuneration or superannuation benefits or any obligation to pay contributions in or in respect of the employment) as still working in the employment and none of his or her other rights relating to the employment shall be affected by the leave.

…

Section 15.— (1) On the expiration of a period of parental leave (being, in a case where parental leave has been terminated under section 12, the period specified in the confirmation document concerned) (“the period”), the employee concerned shall be entitled to return to work—

(a) with the employer with whom he or she was working immediately before the start of the period or, where during the employee's absence from work there was or were a change or changes of ownership of the undertaking in which he or she was employed immediately before the absence, the owner on the expiration of the period (“ the successor”),

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

(c) under the contract of employment under which the employee was employed immediately before the commencement of the period or, …

…

Section 16.— (1) Where an employee is entitled to return to work pursuant to section 15 but it is not reasonably practicable for the employer to permit the employee to return to work in accordance with that section, the employee shall be entitled to be offered by his or her employer suitable alternative employment under a new contract of employment.

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

(a) it is of a kind that is suitable in relation to the employee concerned and appropriate for the employee to do in the circumstances,

(b) the terms or conditions of the contract —

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

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

and

(c) the continuity of service is preserved.

Section 16A. — (1) An employer shall not penalise an employee for proposing to exercise or having exercised his or her entitlement to parental leave or force majeure leave or to make a request under section 15A(2) .

(2) Penalisation of an employee includes —

(a) dismissal of the employee,

(b) unfair treatment of the employee, including selection for redundancy, and

(c) an unfavourable change in the conditions of employment of the employee.

…

In relation to the preliminary matter raised by the Respondent that there is an overlap between the complaints under the Employment Equality Acts 1998-2015 and the Parental Leave Act 1998, that the Complainant must elect but cannot proceed with both. Reference was made to the decision in Jahan Company v Power where the Labour Court rightly said that the Complainant in that case could not litigate claims under both the Employment Equality Acts 1998-2015 and the Maternity Protection Act 1994. However, I note that there is a fundamental difference in that case as compared to the within case. The Labour Court was presented with a set of fact in Jahan Company v Power where the Complainant had initiated two separate proceedings in two different fora against the same Respondent, citing the same “cause of action”, one complain was before a Rights Commissioner under the Maternity Protection Act 1994, where she was awarded compensation on 9 December 2011. She then proceeded to a hearing on 4 March 2013 in the Equality Tribunal under the Employment Equality Act 1998. The Labour Court in that case said,

“Cause of action estoppel is defined in “Res Judicata and Double Jeopardy” by Paul A. McDermott (Butterworth 1999, at p57):-

“The term “cause of action” estoppel signifies the estoppel which arises between parties by reason of a judgment given in favour of one and against the other with respect to the cause of action set up in the first proceedings. Its operation prevents a party to an action from asserting or denying as against the other party the existence of a cause of action, the existence or non-existence of which has already determined by a court of competent jurisdiction in previous litigation between the parties. To succeed in such a plea it must be shown that the cause of action in the earlier action is the same as that raised in the second action; D v C [1984] ILRM 173 at 192 (HC).”

A concise definition of cause of action estoppel (and issue estoppel) as offered by Blayney J. in Gilroy v McLoughlin [1989] ILRM 133, at 136, as follows: -

“In cause of issue estoppel the question is whether a plaintiff is estopped from bringing a particular action by reason of having brought a similar action previously against the same party, while issue estoppel is concerned with whether a particular issue has previously been determined between the same parties by a Court of competent jurisdiction”.

The underlying rationale for the doctrine was explained by Keane J (as he then was) in Dublin Corporation v Building and Allied Trades Union [1996] 2 I.L.R.M 547 as follows:

“The justification of the doctrine is normally found in the maxim interest reipublicae ut sit finis litium and it is important to bear in mind that the public interest referred to reflects, in part at least, the interest of all citizens who resort to litigation in obtaining a final and conclusive determination of their disputes. However severe the stresses of litigation may be for the parties involved — the anxiety, the delays, the costs, the public and painful nature of the process — there is at least the comfort that at some stage finality is reached. Save in those exceptional cases where his opponent can prove that the judgment was procured by fraud, the successful litigant can sleep easily in the knowledge that he need never return to court again.”

Applying the Labour Court’s rationale to the within case, I am satisfied that there is no expressed impediment in either the Employment Equality Acts or the Parental Leave Act to debar the two complaints being considered by the WRC. I am satisfied that the WRC was originally established as a merger of the employment rights bodies and with it help solve the possible forum shopping that it could be said arose in the likes of Jahan Company v Power. The two within complaints were lodged with the WRC for adjudication within days of each other, they have been associated and ran together, and they were heard together. There is no previous adjudication made on either complaint heretofore.

The facts of the complaints are intertwined. However, the Complainant is claiming two different legal issues. One is a breach of her employment rights as prescribed under the Parental Leave Act 1998 and the other is of discrimination under the gender and family status grounds under the Employment Equality Acts 1998-2015. I have noted and accepted the Respondent’s own submission on a specific point here, when it argued that parental leave is not to be considered as on all fours with the family status ground, akin to where maternity leave has been for the gender ground, and was not taken into the Employment Equality Acts, so to speak, where maternity leave had been. Parental leave is set aside under a separate piece of legislation, away from the Employment Equality Acts.

I have noted above in my findings under the previous complaint that I accept the Respondent’s argument that matters relating to parental leave does not simply equate to a family status ground per se. There are substantial differences between the protections under both Acts. Both serve different purposes. These matters have not previously been determined by a court of competent jurisdiction in previous litigation between the parties. Accordingly, I am satisfied that there is no abuse of process in this instance and I accept jurisdiction to hear the case under this heading.

Preliminary matters – Parental Leave Act misconceived

The complaints under the Parental Leave Act can be categorised into three parts.

(i) The initial decision to be removed from the job the Complainant considered she should have returned to after her return from maternity leave and at the start to her parental leave. (ii) The decision to keep her in the accounts department at the end of her parental leave. (iii) The claim of Penalisation under section 16A of the Act. The Complainant is adamant that she was on parental leave from her return to work in September 2017. She claims that this was agreed in a meeting with Mr. A in July prior to her return. She accepts that she had taken parental leave after the birth of her first child in 2011. She said she does not know why there is no documentation detailing her parental leave arrangement with the company for 2017 onwards.

The Respondent said that the Complainant’s complaint under the Parental Leave Act 1998 must fail as she had not met the notification requirements specified under section 8 of the Act to qualify for the protections afforded by statutory parental leave. The Complainant was working on a part time basis but that does not qualify her to make a claim under the 1998 Act. That indeed should I deem her leave arrangement as “statutory parental leave” that her entitlement was well used up during 2018 and finished well in advance of the cognisable period of 6 months prior to the lodging of her claim with the Workplace Relations Commission. (being 5 September 2018 - 4 March 2019).

I have to decide whether the Complainant was on a period of statutory parental leave within the cognisable period of 6 months prior to the lodging of her claim with the Workplace Relations Commission to determine whether she is covered by the protections of the Parental Leave Act 1998. This is necessary before I can examine the alleged breach of section 15 and the alleged penalisation under section 16A.

The Respondent claims that written notification requirement is a fundamental pre-condition for a statutory claim, and it relies on the Labour Court decision of Lee v Vaiciulyte DWT10170, where the Court held that a claimant is not deemed to be on statutory maternity leave due to failure to comply with a statutory mandatory notice condition. It said that the same rationale applies here.

I note that the decision in Lee v Vaiciulyte relies on a previous EAT decision of Kelleher v DHL International [P6/90] and the High Court decision of Ivory v Ski-Line Ltd [1989] ILRM 433. Where it states “ … the ratio of these decisions is that in order to avail of the benefits of the statute an employee must comply with her own statutory obligations under the Act. That included the obligation to give notice under s.9. It follows that where a Claimant fails to comply with a statutory condition precedent to the operation of the Act, she cannot be held to availed of statutory maternity under the Act…”

I also note the decision in Quinn v AIB Investments Managers Ltd r-096584-pl-10/EH where a Rights Commissioner noted that the Complainant’s parental leave request did not meet the statutory requirements in rejecting her claims.

Section 8 of the Parental Leave Act 1998 is clear in its construction and is unambiguous. It sets out in simple terms what an employee must do should they propose to take parental leave under the Act. However, the language is prescriptive and mandatory. The applicant “shall” give written notification of the proposal to the employer as soon as reasonably practicable, but not later than six weeks before the commencement of such leave. The notice must be signed by the employee and state the date of commencement of leave, its duration and the manner in which it is proposed to be taken. Section 9 of the Acts completes the process where the employer confirms the statutory parental leave agreement by not less than 4 weeks before the commencement of the parental leave concerned, shall prepare and sign a “confirmation document” specifying the details of the arrangement.

I note that there is a full paper trail of the parental leave arrangement from 2012, which qualifies that parental leave arrangement to qualify under the Parental Leave Act 1998. However, no evidence was presented of the prescribed and mandatory notice or confirmation document for the period of leave following the Complainant’s leave from September 2017.

Accordingly, in consideration of the strict prescriptive and mandatory notification requirement to avail of statutory parental leave, as set out in section 8 of the Act, and in line with the supporting case law here, I find that the Complainant’s case under the Parental Leave Act 1998 is not well founded and fails.

CA-00026654-001 - Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Acts, 1998 - 2015

I find that the Complainant’s claim on the gender status ground is statute barred.

I find that the Complainant has failed to establish a prima facie case on the family status ground.

CA-00026742-001 - Complaint seeking adjudication by the Workplace Relations Commission under section 18 of the Parental Leave Act 1998

I find that the Complainant’s case under the Parental Leave Act 1998 is not well founded and fails.

Employment Equality Acts - Parental Leave Act - not well founded and fails