ADJ-00008104

Complainant

Respondent

Anonymised Parties

A Lecturer

An Institute of Technology

Representatives

Mr. Alan Ledwith B.L., instructed by O'Dwyer Solicitors

Arthur Cox

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00010646-001

05/04/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00010646-002

05/04/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 16 of the Protection of Employees (Part-Time Work) Act, 2001

CA-00010646-003

05/04/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00010646-005

05/04/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00010646-006

05/04/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00010646-007

05/04/2017

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

CA-00015211-001

23/10/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00015211-002

23/10/2017

The following is a summary of the Complainant’s evidence.

The Complainant is employed by the Respondent as a Lecturer in Law in the Department of Lifelong Learning. The Complainant is a practicing Barrister.

CA-00010646-001 - Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

The Complainant said that despite commencing employment with the Respondent in 2009, she has never been provided with a written statement of the terms and conditions of her employment and when she requested a specific employee related policy on maternity leave, she was not provided with same, but instead re-directed to a citizen’s information page. She said that she has never been given a job title, but she has referred to herself as 'Lecturer in Law' in correspondence with the Respondent and with Third Parties on behalf of the Respondent, and no objection has ever been raised to her using that title.

The Complainant said that she was issued with a staff card and ID number many years ago and has retained the same staff ID number since she started work with the Respondent in 2009. The staff card continues to work all year round for photocopying and printing facilities (even after she was issued with a P.45) and her online log in details including staff email continued to work all year round, even after she was issued with a P.45. She said that she has never been informed of her hourly rate of pay or her break entitlements.

After taking her claim to the WRC, the Complainant said that she received a Contract, however it does not reflect her terms and conditions of employment. She said that she is expected to continue to monitor staff emails in order to communicate with students outside of term time even though she is not being paid.

CA-00010646-002 - Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

Background and teaching hours

The Complainant said she commenced lecturing with the Respondent in January 2009 (academic year 08/09) initially for 3 hours per week in Semester 2 only. At the end of that term, she was issued with a P.45. She returned to lecture 4 hours per week in Semester 2 of the following academic year (09/10) and was again issued with a P.45 at the end of the academic term. She was re-hired in September 2010 (academic year 10/11) and lectured 4 hours in Semester 1 and a further 4 hours in Semester 2. The Complainant said she was appointed as Course Director of her academic programme in this academic year also and was paid an equivalent of 4 extra teaching hours per week each Semester.

She said that she again received a P.45 in the Summer of 2011 and was subsequently re-hired in September 2011 (academic year 11/12) when she lectured 8 hours in Semester 1 and a further 8 hours in Semester 2. The Complainant said that she remained as Course Director during this time and was therefore paid for an equivalent of 12 hours teaching in both Semesters and was issued with a further P.45 during the summer of 2012.

The Complainant said that during the academic year 12/13, she continued to teach 8 hours per week in Semesters 1 and 2 and was issued with a P.45 once again in the Summer of 2013. She was re-hired in September 2013 and during the academic year 13/14 continued to teach 8 hours per week in Semesters 1 and 2 and was issued with a P.45 once again in the Summer of 2014.

The Complainant said that she raised a grievance with her line manager about the issuing of a P.45 on this occasion, believing that she was entitled to a Contract of Indefinite Duration (CID) from January 2013 and furthermore that she had taken maternity leave from 12 March 2014 but received no payment from the Respondent during maternity leave. She was issued with a P.45 on the day that her maternity leave commenced. However, the P.45 was not sent to her until much later that Summer – in or around July 2014.

The Complainant re-commenced teaching in September 2014 for the academic year 14/15 and

continued to teach 8 hours per week, with the occasional Saturday in addition. In June/July

2015, she was issued with a further P.45. She again raised this as a grievance with her line manager and was assured that CIDs were forthcoming. Once again, she recommenced teaching in September 2015, for the academic year 15/16 for 8 hours per week plus the occasional Saturday. She immediately informed her line manager that she was pregnant but that her maternity leave would not commence until teaching had ceased as she was due to give birth in May.

The Complainant gave a detailed description of her teaching duties and said that her duties as a part time lecturer are the same as the duties of full-time lecturers.

Breach of Fixed Term Workers Act and breach of LRC Agreement and Cush Report

The Complainant claims that the Respondent breached the terms of section 9 of the Protection of Employees (Fixed Term Workers) Act 2003 by refusing to provide her with a CID which she has been entitled to since January 2013.

Further, or in the alternate, as an hourly paid worker, the Respondent agreed to be bound by the terms of an agreement reached at the Labour Relations Commission in 2015 that all part time or hourly paid assistant lecturers in the Institute of Technology sector would be converted to pro-rata Assistant Lecturers. The Respondent has not carried this out and continues to refuse to do so despite being requested to do so. The Complainant said that a ‘Michael Cush Report’ also required that all part time and hourly paid workers be placed on CIDs, however, this was also not carried out by the Respondent.

In September 2017, the Respondent issued a CID for ‘hours only’ to her which she refused to sign as it did not reflect her terms and conditions of work. She claims that the terms of that purported contract are entirely discriminatory and unlawful. That purported contract proposed to allocate hours to her based on an incorrect calculation of the hours that she worked in 2010/11. She alleges that the Respondent is retrospectively attempting to apply the terms of the Michael Cush Report to her situation to her significant disadvantage. The Complainant maintains that she worked significantly more hours than those referred to in the purported contract. She said that she became entitled to a CID in 2013 and is entitled to a pro rata CID based on the hours worked in the pre-ceding year, 204 hours during the academic year.

The Complainant said the purported contract specifically claims that she became entitled to a CID in 2011 and a further term of the said contract provides for paid maternity leave. She said when she sought maternity pay in 2014 it was refused as set out above. In addition, the purported contract proposes no entitlement to ‘sick pay’ and does not permit access to the Respondent’s employee Pension scheme. In short, the purported contract proposes to create an inferior form of CID for workers who carry out the same tasks as other workers who have been granted more favourable pro rata CIDs.

CA-00010646-003 - Complaint seeking adjudication by the Workplace Relations Commission under Section 16 of the Protection of Employees (Part-Time Work) Act, 2001

The Complainant claims that her duties as a part-time lecturer in the lifelong learning department are the same as the duties of full-time lecturers. She cites Ms. Y, who is employed on a CID pro-rata with full entitlement such as the Maternity Benefits, Pension benefits and incremental pay benefits as her comparator under the Acts. The Complainant acknowledged that Ms. Y applied for and was successful in a competition for a fixed term part-time pro rata assistant lecture post advertised by the School of business in June 2014 and in 2017 she was granted a full-time pro rata CID. The Complainant acknowledged that she did not apply for the position advertised in 2014.

She claims that her duties include but are not limited to: using electronic teaching and building courses online; attending staff training; communicating with students via email and other online resources; meeting with students outside of teaching hours; writing references for students when requested; setting exams and assignments; providing feedback on exams and assignments to students including meeting with them outside of academic hours to do so; correcting exam papers; liaising with students for deferred or repeated exams; inputting results into the required electronic format; attending at exam board meetings twice per academic year; attending at programme board meetings twice per academic year; participating in programmatic reviews; attending at open evenings; promoting programmes; liaising with outside accreditation bodies to ensure that the academic programme meets required standards; liaising with the college library to ensure that adequate textbooks are available for all her courses; liaising similarly with library staff to ensure access to electronic resources for her students; organising special subject specific information and graduate prospect evenings for students.

She said that her role is identical to that of a full-time lecturer save for the fact that a full-time lecturer is allocated a greater number of teaching hours. She said, full-time lecturers are paid all year around while part time lecturers in her department are not. She is not paid for midterm breaks, Christmas, Easter or Summer breaks when full time lecturers are. Furthermore, several full-time lecturers who teach in the same subject areas as her, have been granted CIDs in recent years.

She said there are several relevant comparators. In each and every case, those lecturers commenced employment after her and in some cases, many years after her. She said that one of those persons has been granted a part-time CID in the recent past. It is the case that no lecturer who works for her department has been granted a CID, despite many of them being entitled to same for many years.

She said that full time employees and indeed those part time employees who have been granted CID’s have been permitted to join in the Respondent’s Employee Pension Scheme when she has not been included in same. She said that this amounts to less favourable treatment for part time workers.

The Complainant cites the tests set out by the ECJ in Bilka-Kaufhaus GHmb v Weber Von Hartz. [1986] C-170/84.

CA-00015211-001 - Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

The Complainant claims that there is discriminatory treatment between part-time and full-time workers and between workers who teach on part time programmes verses those who teach on full time programmes.

The Complainant said that her role is identical to that of a full-time lecturer save for the fact that a full-time lecturer is allocated a greater number of teaching hours. She said that despite this, full time lecturers are paid all year round while part time lecturers in her department are not. The Complainant said that she is not paid for mid-term breaks, Christmas, Easter or Summer breaks when full time lecturers are. She said that furthermore, several full-time lecturers who teach in the same subject areas as her, have been granted Contracts of indefinite duration (CID) in recent years. The Complainant said that there are several relevant comparators, in particular she cited Mr. X. She said that Mr. X was employed on a fixed term contract and applied for the pro rata fixed term post advertised by the School of Business in 2013, when she did not, this contract was converted to a pro rata part time CID in 2016, she said that they carry out the same roles for the Respondent. She listed the various roles and duties that she is aware that Mr. X performs for the Respondent and said that it is on all fours with her role and duties. She said that Mr. X was offered a CID in 2016 when she was not, and she claims that the discrimination is ongoing.

The Complainant said that she teaches at Level 7 and Level 8 Higher Education Authority approved degrees. She said that her students are taught on a part-time basis usually in the evenings and occasionally at the weekends. These courses are fee paying and in addition to this, the Respondent receives a state grant for each student enrolled on those programmes, which she claims is identical to the grant awarded for all other students who undertake Level 7 and Level 8 degrees on a full-time basis. The Complainant claims that the Respondent appears to be making the case that lecturers who teach on part time programmes should be treated differently to those who teach on full time programmes, despite their being no objective justification for so doing. She claims that the same programmes are taught, at the same levels, albeit at different times of the day. The employees are engaged in the same work but those who teach part time learners earn roughly half of those who teach full time learners since they do not get paid out of term. The Complainant claims that this is entirely unjustifiable and has an enormous personal impact on those lecturers, such as herself, who teach part time learners.

The Complainant said that additionally, full time employees and indeed those part time employees who have been granted CID’s have been permitted to join in the Respondent’s Employee Pension Scheme whereas the Complainant has not been included in same. The Complainant claims that this amounts to less favourable treatment for part time workers and specifically are treated less favourably than other part time workers who were permitted to join the Respondent’s pension scheme and who were granted a CID despite working in the Respondent’s Institute for fewer years than her. The Complainant said she was advised that the repeated issuing of P.45’s to her by the same employer was having a negative impact on her ability to claim a contributory state pension upon her retirement. Furthermore, full time and indeed all those part-time employees who have been granted CIDs are paid on an incremental scale with entry and progression in the increment scale dependent on a number of factors. The Complainant said she has never been able to avail of the increment scale due to never being placed on a pro rata contract.

This differential also affects the Complainant in respect of maternity leave and maternity pay. She said that she was issued with the P.45 on the day that she commenced both of her maternity leaves in the past – although they were not delivered to her until many months later when she received a bare copy of a P.45 in the post with no covering letter or note. The net effect of that is that she has had to return to work, as a self-employed person, almost immediately after giving birth. In the case of her daughter who was born in 2016, the Complainant was forced to return to work a short 8 days after her birth as she was not in an economic position to remain at home.

The Complainant said that due to the Respondent’s failing to complete her maternity benefit application form correctly, she was delayed in receiving state maternity benefit. The exchanges via letter and email between the Respondent and herself at that time gave her no confidence that her position would be secure come the following College semester. She said that the personal impact of this on her and on her health and indeed the health of her children, cannot be underestimated. She said that another employee with the Respondent, who teaches both in her department and in another department and who has been granted a full time CID, was due to give birth at a similar time to her (late May 2018). That employee commenced employment in the Respondent’s some years after her and will receive the full benefit of maternity pay for the duration of her leave, while she will not. This is manifestly unfair.

P.45 and Maternity leave 2014

The Complainant said that on her return to work in September 2014, she asked to be provided with a copy of the Respondent’s maternity leave policy which was never received. The Complainant was directed to a ‘citizens information’ page, and she was informed that the Respondent “pays maternity leave to all salaried staff personnel. However, [the Respondent] does not pay maternity leave to part-time hourly employees, they are paid only for hours worked.”

The Complainant raised the issue of a CID with her line manager and was told that all Part Time staff were shortly to be placed on CIDs under the terms of the Haddington Road agreement. This has never occurred. During the academic year 14/15, she continued to lecture 8 hours per week in Semesters 1 and 2 and once again, was issued with a P.45 in the Summer of 2015. During that academic year, she continued to converse with her line manager about the implementation of the promise to place all part time staff on CIDs and each time, she was assured that same was imminent.

P.45 and Maternity leave 2016

In September 2015, the Complainant returned to work and immediately informed her line manager that she was pregnant but was not due to give birth until after the end of the academic term. Once again, she lectured 8 hours per week in Semesters 1 and 2. As required, she submitted her maternity benefit application form to the Respondent so that the relevant sections could be completed by her employer. This was not carried out correctly by the Respondent and the relevant form was returned to her wherein the Respondent again attempted to indicate that she would ‘only be returning to work if there were sufficient student numbers in [her] academic programme’.

This occurred despite the fact that she had already been issued with her teaching timetable for the following term by her line manager and despite the fact that she teaches on all years of her academic programme where students were already enrolled i.e. the Complainant would have been teaching 2nd, 3rd and 4th year students even if there were insufficient numbers for a 1st year. At this time, the Complainant protested strongly to the HR department and demanded that she be issued with a CID immediately as she was entitled to same. The Complainant also demanded that the relevant maternity benefit form be completed correctly by the Respondent and returned to the Department of Social Protection so that she would be paid maternity benefit. The Respondent rectified the relevant form and stated, without qualification that she would be returning to work on 5 September 2016.

The Complainant was informed by the Respondent that they were required to issues a P.45 so that she could claim social welfare over the summer months. This is clearly incorrect since a) she was on maternity leave and this fact was known to the Respondent and b) she was entitled to a CID therefore issuing her with a P.45 was unlawful and of no effect. The Complainant was also assured by the Respondent in correspondence that she would be issued with a CID ‘within weeks’.

In September 2016, the Complainant returned to work once again teaching 8 hours in Semester 1 and 7 hours in Semester 2. Having repeatedly raised the CID issue with her line manager, she was told initially that contracts would be forthcoming and later that none would be issued. The Complainant then wrote to the HR department again in 16 February 2017 to demand a CID.

The matter of CIDs was discussed regularly at Course Board Meetings and also at Exam Board meetings at which the Complainant was required to attend. In addition, from 2012 onwards the Complainant’s line manager issued each lecturer with a copy of their teaching timetable for the following academic year. Usually this was done orally at the Summer Exam Board meeting and then further by way of post and always prior to the issuing of a P.45. A P.45 was issued to the Complainant in 2012, 2013, 2014, 2015 and 2016 at which time she had already been informed that she would be returning to work at the commencement of the next academic year.

The Complainant said she filed this complaint in October 2017 when it came to her attention that since her return to lecturing in September 2017, Mr. X has been granted a pro rata Contract of Indefinite duration for hours very similar to hers, (9 hours per week whereas the Complainant teaches 8 hours per week). Since the Complainant commenced her initial complaint against the Respondent she has been issued with a CID on an 'hours only basis'. The Complainant is the only person in the academic staff in all of the Respondent who has been presented with a contract of that nature for signature.

The Complainant said that she has been offered an inferior and discriminatory contract, without justification as her role as a lecturer is the exact same as the role of her comparator. She said that they teach similar hours and, in this instance, over similar subject areas. The only discernible difference is gender. The Complainant believes her employer has discriminated against her on the ground of her gender and family status.

The Complainant is a married woman who has taken maternity leave twice over the course of her employment with the Respondent and was not paid on either occasion. She said on both occasions she was unlawfully dismissed from her employment on the date that she commenced her maternity leave.

In respect of her first maternity leave in 2014, the Complainant was not paid for the weeks of lecturing that she was unable to complete due to her maternity leave. Since then, the Respondent has acknowledged in the context of presenting a CID for hours only, that she was in fact entitled to that CID many years ago and at the very least, during 2014 when she was on maternity leave. It is clear therefore that the Complainant was entitled to be paid for her maternity leave in 2014. It is clear that the Respondent's refusal to provide an equivalent contract to that of her comparator is due to the fact that she will take maternity leave again in the future and the Respondent would be required to pay the Complainant for the entirety of that leave and not just the portion that falls within term time.

The following is a summary of the Respondent’s case

Background

The Respondent is an Institute of Technology and has a Department of Lifelong Learning which provides adult learners with flexible and innovative learning routes, enabling the learner to achieve a third level qualification while also recognising they have work, family and life commitments.

The Department consists of one Head of Department, three full-time administrative staff and one half-time/term-time, administrative staff member. There are between 40/50 different staff members teaching part-time across a range of programmes offered by the Department on an annual basis. A significant number of these staff members, including the Complainant, hold other/substantive roles outside of the Respondent - ordinarily in the field in which they are teaching. A typical Academic or Professional programme is offered over two nights per week, from 6pm to 10pm each evening for the full academic year and also on scheduled Saturdays as required. These schedules are confirmed with each lecturer prior to each semester.

The Complainant was engaged by the Respondent in 2009 to teach Law over a number of courses.

CA-00010646-001 - Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

The Respondent said that the Complainant was issued with a contract of employment by letter dated 26 September 2017 and it said that the contract complies with section 3 of the 1994 Act. The Respondent said that the Complainant has not signed this contract.

The Respondent said that having regard for the provisions of section 7(1) of the 1994 Act, it is clear that the Respondent has provided the statement to the employee as mandated by the Act. In those circumstances it is respectfully submitted that the only remedy available to the employee is as set out in section 7(2)(d) which provides that the Adjudication Officer may: “order the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all the circumstances, but not exceeding 4 weeks remuneration in respect of the employee’s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act, 1977.” It claims that the Complainant’s earnings for 2017 (the year in which the complaint was submitted) was €12,539.31. It said on this basis, the maximum award of compensation that may be made by the Adjudication Officer is €943.02.

CA-00010646-002 Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

The Respondent said that the Complainant was issued with a contract of indefinite duration in September 2017 with effect from April 2012 and as such she has ceased to be a fixed-term employee. The Respondent maintains that accordingly the Complainant lacks jurisdiction to maintain a claim under the Protection of Employees (Fixed-Term Work) Act 2003.

The Respondent said it wanted to rely on the direction from the Labour Court where it said that it was made clear that when an employee has CID/permanent status they cannot maintain a claim under the Protection of Employees (Fixed-Term Work) Act, 2003 and therefore has no locus standi to take the claim.

The Respondent said that in Health Service Executive v Khan[2008] IEHC 234, the Labour Court held in the context of a 2003 Act claim that the contract of indefinite duration to which a fixed term employee might become entitled is “identical in its terms….as the fixed term contract from which it derived." The Respondent said that it also relies on the case of UCC V Dr Inge Nieuwstraten (FTD 1122), where the Court concluded that: “[T]he Complainant was on a permanent contract of employment at the time she made her complaint to the Rights Commissioner on 18th March 2010 and therefore had no locus standi to maintain the complaint. Accordingly, the Court is satisfied that it has no jurisdiction to hear the complaint.”

The Respondent maintains that the same situation exists in the within case.

CA-00010646-003 - Complaint seeking adjudication by the Workplace Relations Commission under Section 16 of the Protection of Employees (Part-Time Work) Act, 2001

The Respondent said that section 9(1) of the Protection of Employees (Part-Time Work) Act, 2001 provides: “Conditions of employment for part-time employees, (1) Subject to subsections (2) and (4) and section 11(2), a part-time employee shall not, in respect of his or her conditions of employment, be treated in a less favourable manner than a comparable full-time employee.

(2) Without prejudice to section 11(2), if treating a part-time employee, in respect of a particular condition of employment, in a less favourable manner than a comparable full-time employee can be justified on objective grounds then that employee may, notwithstanding subsection (1), be so treated.

(4) Subsection (1) shall, in so far, but only in so far, as it relates to any pension scheme or arrangement, not apply to a part-time employee whose normal hours of work constitute less than 20 per cent of the normal hours of work of a comparable full-time employee.”

The Respondent said that the Complainant can point to no “comparable fulltime” employee of the Respondent that is treated more favourably than her, by reference to the definition as provided for in the Act.

The Respondent said that the “Comparable employee” is defined in section 7(2) of the 2001 Act as follows:

“For the purposes of this Part, an employee is a comparable employee in relation to the employee firstly mentioned in the definition of “part-time employee” in this section (the “relevant part-time employee”) if–

(a) the employee and the relevant part-time employee are employed by the same employer or associated employers and one of the conditions referred to in subsection (3) is satisfied in respect of those employees,

(b) in case paragraph (a) does not apply (including a case where the relevant part-time employee is the sole employee of the employer), the employee is specified in a collective agreement, being an agreement that for the time being has effect in relation to the relevant part-time employee, to be a type of employee who is to be regarded for the purposes of this Part as a comparable employee in relation to the relevant part-time employee, or

(c) in case neither paragraph (a) nor (b) applies, the employee is employed in the same industry or sector of employment as the relevant part-time employee is employed in and one of the conditions referred to in subsection (3) is satisfied in respect of those employees, and references in this Part to a comparable full-time employee in relation to a part-time employee shall be construed accordingly.

(3) The following are the conditions mentioned in subsection (2)–

(a) both of the employees concerned perform the same work under the same or similar conditions or each is interchangeable with the other in relation to the work,

(b) the work performed by one of the employees concerned is of the same or a similar nature to that performed by the other and any differences between the work performed or the conditions under which it is performed by each, either are of small importance in relation to the work as a whole or occur with such irregularity as not to be significant, and (c) the work performed by the relevant part-time employee is equal or greater in value to the work performed by the other employee concerned, having regard to such matters as skill, physical or mental requirements, responsibility and working conditions.”

The Respondent said that the Complainant is an hourly paid-part time Associate Lecturer. Whereas she seeks to compare herself to a Lecturer and/or a pro-rata Lecturer, which is not correct. The Respondent said that the following core duties are not carried out by the Complainant that are mandated of a Lecturer/pro-rata Lecturer:

(a) engaging in research, consultancy and development work;

(b) participating in committees appropriate to courses;

(c) participating in development, implementation and maintenance of academic quality assurance arrangements;

(d) participating in appropriate activities necessary to the development of their department/school and the Institute; and

(e) directing and supervising the work of Tutor/Demonstrator and taking academic responsibility for the academic standards of this work.

The Respondent said that an additional point of differentiation between the Complainant and an Assistant Lecturer/ Lecturer, is that the latter are mandated under their contracts of employment to obtain prior written approval from the President of the Institute before engaging in any external activity. The Complainant is not subject to such an obligation and is free to undertake work outside of the Institute as she wishes. The Respondent points to the contractual limitation placed on Lecturers/pro-rata Lectures, which reads as follows: “External Activity: Any external activity engaged in by the appointee must not be such as to interfere with the fulfilling of the appointee’s duties and responsibilities to the Institute which are implied by this contract. Any external employment, self-employment, working partnerships or consultancy work entered into by the appointee must not conflict with the interests of the Institute and must have the prior written approval of the President of the Institute. Approval may be given where this activity is deemed by the Institute not to interfere with the fulfilling of the appointee’s duties and responsibilities to the Institute and/or where the activity is deemed not to interfere with the interests of the Institute. Any approval/refusal will be subject to ongoing review by the Institute.”

The Respondent said that the Complainant’s hourly rate of €64.63 per hour encompasses payment in respect of benefits to which the Complainant alleges she is being denied. The Respondent said that it should be noted that were the Complainant employed on full-time hours on this enhanced hourly rate then her annual salary would far exceed any salary paid to a Lecturer or Assistant Lecturer. Therefore, the Lecturer/pro-rata Lecturer is not the correct comparator in this case.

CA-00015211-001 - Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

The Respondent said that the Complainant alleges that she has been discriminated on the grounds of gender and family status contrary to the Employment Equality Acts.

The Respondent said that the Complainant has utterly failed to adduce any evidence in her submissions upon which an inference of discrimination on the grounds of gender and or family status could be drawn.

The Respondent said that Section 85A of the Act provides at subsection (1) as follows: -

“Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove to the contrary.”

The first part of that subsection requires the Complainant to establish facts which give rise to the presumption which then may be rebutted by the Respondent. In Southern Health Board –v- Mitchell [2001] ELR 2001 the Labour Court considered the nature of the evidential burden which a claimant must discharge before a prima facie case can be made out as follows: -

“The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts of which they rely in seeking to raise a

presumption of unlawful discrimination. It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment.”

The Respondent said that it is clear that the Complainant must not only establish the primary facts upon which she relies, but they must also show that those facts are sufficient to raise an inference of discrimination. The Respondent said that the Complainant has made bland assertions regarding Mr. X, which is quite simply - insufficient.

In the instant case it is clear that the Complainant has merely made assertions and, in the circumstances, it is necessary that she prove, on the balance of probabilities, sufficient primary facts from which a presumption of discrimination on the gender and family status grounds can be drawn. .

The Respondent said that the Complainant has failed to point out that the Respondent employs 38 employees (including the Complainant) in precisely the same circumstances and in the same capacity as the Complainant. Of those, 16 are female and 22 are male. Notwithstanding that the Complainant alleges she is being discriminated on the basis of gender and family status she has expressly stated in her submission that the only difference between her and her comparator is gender. It said that the comparator is a Pro-Rata Part-Time Assistant Lecturer. The Respondent said that the Complainant cannot validly compare herself to a Pro-Rata Part-Time Assistant Lecturer.

The Respondent said that it is also noteworthy that the Complainant, as it relates to her allegations in respect of family status makes two submissions (i) in respect of her maternity leave in 2014; and (ii) in respect of maternity leave which she may take in the future. The Respondent said that the 2014 complaint is out of time, having regard for the provisions of section 77(5) of the Employment Equality Acts. It is clear that the Complainant has a period of six months from the date the alleged discrimination occurred to present her case to the Workplace Relations Commission. This period can be extended by a further six months where the Director is satisfied there is reasonable cause to do so. The Complainant's complaint was presented for adjudication on 23 October 2017 and as such there is no basis on which the Workplace Relations Commission can entertain her complaint.

Furthermore, and in respect of the matters complained of, which have not yet arisen and may never arise, the Respondent relies on Melbury Developments Ltd v Valpeters EDA 17/2005 where the Court held that: - “Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.” 

CA-00010646-001 - Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

The Relevant Law

Section 7 of the Terms of Employment (Information) Act, 1994 provides for employers to seek redress on contravention of sections 3, 4, 5 or 6 of the Terms of Employment (Information) Act, 1994, I note that the applicable sections read as follows,

3.— (1) An employer shall, not later than 2 months after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment, that is to say—

(a) the full names of the employer and the employee,

(b) the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act, 1963),

c) the place of work or, where there is no fixed or main place of work, a statement specifying that the employee is required or permitted to work at various places,

(d) the title of the job or nature of the work for which the employee is employed,

(e) the date of commencement of the employee’s contract of employment,

(f) in the case of a temporary contract of employment, the expected duration thereof or, if the contract of employment is for a fixed term, the date on which the contract expires,

(fa) a reference to any registered employment agreement or employment regulation order which applies to the employee and confirmation of where the employee may obtain a copy of such agreement or order,

(g) the rate or method of calculation of the employee’ s remuneration and the pay reference period for the purposes of the National Minimum Wage Act, 2000,

(ga) that the employee may, under section 23of the National Minimum Wage Act, 2000, request from the employer a written statement of the employee’s average hourly rate of pay for any pay reference period as provided in that section,

(h) the length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval,

(i) any terms or conditions relating to hours of work (including overtime),

(j) any terms or conditions relating to paid leave (other than paid sick leave),

(k) any terms or conditions relating to—

(i) incapacity for work due to sickness or injury and paid sick leave, and

(ii) pensions and pension schemes,

(l) the period of notice which the employee is required to give and entitled to receive (whether by or under statute or under the terms of the employee’s contract of employment) to determine the employee’s contract of employment or, where this cannot be indicated when the information is given, the method for determining such periods of notice,

(m) a reference to any collective agreements which directly affect the terms and conditions of the employee’s employment including, where the employer is not a party to such agreements, particulars of the bodies or institutions by whom they were made.

(2) A statement shall be given to an employee under subsection (1) notwithstanding that the employee’s employment ends before the end of the period within which the statement is required to be given.

(3) The particulars specified in paragraphs (g), (h), (i), (j), (k) and (l) of the said subsection (1), may be given to the employee in the form of a reference to provisions of statutes or instruments made under statute or of any other laws or of any administrative provisions or collective agreements, governing those particulars which the employee has reasonable opportunities of reading during the course of the employee’s employment or which are reasonably accessible to the employee in some other way.

(4) A statement furnished by an employer under subsection (1) shall be signed and dated by or on behalf of the employer.

(5) A copy of the said statement shall be retained by the employer during the period of the employee's employment and for a period of 1 year thereafter.

(6) (a) The Minister may by order require employers to give or cause to be given to employees within a specified time a statement in writing containing such particulars of the terms of their employment (other than those referred to in subsection (1)) as may be specified in the order and employers shall comply with the provisions of such an order.

(b) The Minister may by order amend or revoke an order under this subsection, including an order under this paragraph.

(7) This section (other than subsection (6)) shall not apply or have effect as respects contracts of employment entered into before the commencement of this Act.

5.— (1) Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3, 4 or 6 , the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than—

(a) 1 month after the change takes effect, or

(b) where the change is consequent on the employee being required to work outside the State for a period of more than 1 month, the time of the employee’s departure.

(2) Subsection (1) does not apply in relation to a change occurring in provisions of statutes or instruments made under statute, other than a registered employment agreement or employment regulation order, or of any other laws or of any administrative provisions or collective agreements referred to in the statement given under section 3 or 4.

6.— (1) Where, before the commencement of this Act, an employee has entered into a contract of employment with an employer, then, the employer shall, if so requested by the employee, furnish to the employee a statement under section 3 and, if so requested by the employee, there shall be added to the statement the particulars specified in section 4 .

(2) An employer shall, within 2 months after the employer has been required to do so under subsection (1) furnish to the employee concerned a written statement in accordance with that subsection.

In dealing with this complaint, I am very mindful of the purpose of the legislation and the various provisions under the Terms of Employment (Information) Act, 1994, which sets out the basic terms of employment which the employer must provide to its employees in written form within 2 months of starting the employment and it obliges the employer to notify the employee of changes to a term or condition within 1 month.

I note that the Complainant said she was working with the Respondent for some eight years and that she was looking for the terms of her employment from the Respondent for a time. I note that the Respondent said that there was no standard contract to give, that a CID was offered in September 2017 and this complies with section 3 of the Act.

Accordingly, I am satisfied that the Complainant’s case is well founded and that she was not provided with the minimum level of information as required under the 1994 Act and the Respondent has being in contravention of the Act.

I note the Complainant’s earnings for the year and deem that €500, equivalent to two week’s wages, is just and fair in the circumstances.

CA-00010646-002 Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

The Relevant Law

Section 2 (1)

“fixed-term employee” means a person having a contract of employment entered into directly with an employer where the end of the contract of employment concerned is determined by an objective condition such as arriving at a specific date, completing a specific task or the occurrence of a specific event but does not include—

(a) employees in initial vocational training relationships or apprenticeship schemes, or

(b) employees with a contract of employment which has been concluded within the framework of a specific public or publicly-supported training, integration or vocational retraining programme

I note the relevant authorities in this matter. In particular I note the decision in the case of UCC V Dr Inge Nieuwstraten (FTD 1122) where the claimant was a permanent part-time employee but in addition also had a fixed-term contract as a part-time lecturer. The Court concluded that as the Complainant was on a permanent contract of employment at the time, she made her complaint that she had no locus standi to maintain her complaint under the Protection of Employees (Fixed-Term Work) Act, 2003. I also take note of the decision in Dunlaoghaire Rathdown County Council v Joe Burns (FTD 173) where the Labour Court found: “The Appellant in the within appeal appears that at all material times he was employed by the Respondent as a permanent employee and consequently employed on a contract of employment of indefinite duration. However, he also maintains that he was for a time during the same period a Fixed Term Worker employed on a Fixed Term contract of employment by the Respondent. These contentions are irreconcilable. This is not a case of the Appellant being employed in two different capacities at different times by the same employer. The Appellant in the within appeal was employed by the Respondent in only one capacity at any one time. At no material time was his employment with the Respondent at risk or under threat”. … “The Court concludes that at all material times the Appellant was employed as a permanent employee on a contract of employment of indefinite duration by the Respondent and consequently he does not have locus-standi to maintain the within appeal”.

Thus, under the terms of the Protection of Employees (Fixed-Term Work) Act, 2003 a person cannot be both a permanent employee and a fixed-term employee at the same time.

From the evidence adduced I note the Complainant was issued with a contract of indefinite duration effective from April 2012. Therefore, she is no longer a fixed term employee as per the definition under the Act. Accordingly, I find that the Complainant had no locus standi to maintain the complaint. I, therefore have no jurisdiction to hear the complaint and find in favour of the Respondent.

CA-00010646-003 - Complaint seeking adjudication by the Workplace Relations Commission under Section 16 of the Protection of Employees (Part-Time Work) Act, 2001

The Relevant Law

This claim falls to be dealt with by application of section 9 of the Act which provides: -

(1) Subject to subsection (2) and (4) and section 11(2), a part-time employee shall not, in respect of his or her conditions of employment, be treated in a less favourable manner than a comparable full-time employee.

(2) Without prejudice to section 11(2), if treating a part-time employee, in respect of a particular condition of employment, in a less favourable manner than a comparable full-time employee can be justified on objective grounds then that employee may, notwithstanding subsection (1), be so treated.

(3) Nothing in subsection (2) shall be construed as affecting the application of a relevant enactment, by virtue of section 8, to a part-time employee.

(4) Subsection (1) shall, in so far, but only in so far, as it relates to any pension scheme or arrangement, not apply to a part-time employee whose normal hours of work constitute less than 20 per cent of the normal hours of work of a comparable full-time employee.

(5) For the avoidance of doubt, the reference in this section to a comparable full-time employee is a reference to such an employee either of the opposite sex to the part-time employee concerned or of the same sex as him or her

Section 9 provides, in effect, that a part-time employee is entitled to the same conditions of employment as a comparable full-time employee unless a lesser treatment of the part-time employee can be justified on objective grounds.

A ‘comparable full-time employee’ for the purpose of Section 9 of the Act is defined by s.7(2) as follows: -

(2) For the purposes of this Part, an employee is a comparable employee in relation to the employee firstly mentioned in the definition of “part-time employee” in this section (the “relevant part-time employee”) if—

(a) the employee and the relevant part-time employee are employed by the same employer or associated employers and one of the conditions referred to in subsection (3) is satisfied in respect of those employees,

(b) in case paragraph (a) does not apply (including a case where the relevant part-time employee is the sole employee of the employer), the employee is specified in a collective agreement, being an agreement that for the time being has effect in relation to the relevant part-time employee, to be a type of employee who is to be regarded for the purposes of this Part as a comparable employee in relation to the relevant part-time employee, or

(c) in case neither paragraph (a) nor (b) applies, the employee is employed in the same industry or sector of employment as the relevant part-time employee is employed in and one of the conditions referred to in subsection (3) is satisfied in respect of those employees,

and references in this Part to a comparable full-time employee in relation to a part-time employee shall be construed accordingly.

Subsection (3) of this section is in the following terms: -

The following are the conditions mentioned in subsection (2)—

(a) both of the employees concerned perform the same work under the same or similar conditions or each is interchangeable with the other in relation to the work,

(b) the work performed by one of the employees concerned is of the same or a similar nature to that performed by the other and any differences between the work performed or the conditions under which it is performed by each, either are of small importance in relation to the work as a whole or occur with such irregularity as not to be significant, and

(c) the work performed by the relevant part-time employee is equal or greater in value to the work performed by the other employee concerned, having regard to such matters as skill, physical or mental requirements, responsibility and working conditions.

The difference in how the Complainant and her comparator Ms. Y are treated are without doubt totally different.

The Complainant testified that the work she performs is identical in all material respects to that performed by her nominated comparator. However, the Respondent claims that she has in fact identified the wrong comparator. She is in effect comparing to a Pro-Rata Part-Time Assistant Lecturer. The Respondent said that the Complainant cannot validly compare herself to a Pro-Rata Part-Time Assistant Lecturer.

I note that the Complainant and her comparator both started out as Hourly paid Assistant / Associate Lecturers in the lifelong learning Department. In June 2014 Ms. Y applied for and was successful in attaining a part-time pro rata assistant lecture post advertised by the School of Business. The Complainant chose not to do the same, she had her reasons at the time.

I note that many of the functions and duties that both perform fall within the wide title as “lecturer”. The Complainant has presented her case that she as a lecturer in the lifelong learning department has had to design the course, act as coordinator and carry out much more tasks and duties than ‘just’ lecturing law. She claims that this is identical to the Part-Time or full time Assistant Lecturer /Lecturer. However, their conditions are vastly superior. In response to some of the contractual requirements that the Respondent claims are required from the Assistant Lecturer /Lecturer, the Complainant said she is more than willing and capable to perform them if asked. She also questioned the contributions by some named Assistant Lecturers /Lecturers having to carry out those requirements at all in reality.

The Respondent on the other hand is stating that although both perform like duties, there is a substantial core difference to the Complainant’s role and that of the Part-Time or full time Assistant Lecturer /Lecturer. The Complainant’s hourly remuneration is far superior to that of an Assistant Lecturer /Lecturer role to reflect the benefits that she is entitled to as Associate hourly paid Lecturer. There are distinct differences. The Respondent points the fundamental core duties that are not carried out by the Complainant, which are the required by the Respondent’s Assistant Lecturer /Lecturer. Namely,

(a) Engage in research, consultancy and development work;

(b) Participating in committees appropriate to courses;

(c) Participating in development, implementation and maintenance of academic quality assurance arrangements;

(d) Participating in appropriate activities necessary to the development of their department/school and the institute; and

(e) Directing and supervising the work of Tutor/Demonstrator and taking academic responsibility for the academic standards of work.

The Respondent also refers to the fundamental limitations placed on its Assistant Lecturers /Lecturers, with regard to external employment, self- employment, consultation and the need for the Respondent’s approval. Whereas the Complainant is not restricted in any way.

The core question that must be considered here is whether the comparison of the positions of the Complainant and her comparator are one in the same. The Comparable employee is defined in section 7(2) of the Act and the conditions to be considered are set out in section 7(3). I note with interest the decisions around the selection of comparators and different types of contracts pertaining to claimants and comparators. In particular I note the Labour Court decision in Dundalk Town Council v David Teather PTD 113when it said “In McArdle and the State Laboratory (Determination FTD063) this Court extensively considered arguments on the appropriateness of the Claimant’s nominated comparator similar to those advanced by the Respondent in the instant case. That case concerned a claim made by an unestablished civil servant employed on a fixed-term contract for equal treatment with an established permanent civil servant with whom she was engaged in like work. The Respondent contended that the Claimants was confined to selecting a comparator on the same type of contract as that on which she was employed, namely that of an unestablished civil servant. It was contended that in consequence the Claimant’s complaint fell outside the ambit of the Act. In rejecting that line of argument the Court had this to say: -

It is for the Claimant to choose his or her comparator provided they meet the statutory criteria. The only test is whether the Claimant and the comparator are engaged in like work. The purpose of a comparator under the various statutes dealing with discrimination is to demonstrate if a higher value is placed on the same or similar work as that performed by the Claimant when it is performed by another employee having a different gender, characteristic, or status, as the case may be. Hence the determinative considerations are the nature of the work being performed by the two and that one is in a protected category and the other is not.”

I have considered the arguments put forward by both the Complainant and the Respondent in this regard and the although the core area for both the Complainant and her comparator is lecturing, the extent of the difference in the expectation of contract between the Complainant and Assistant Lecturers /Lecturers are vast. I note the Complainant’s willingness and capability to meet the additional requirement set out in the Assistant Lecturers /Lecturers contract. I note some of the additional roles she is involved in and how she is paid accordingly. However, the fact remains she is not professionally or contractually required to do this. The Assistant Lecturers /Lecturers roles are of a higher value and definitive requirements at the direction of the Respondent’s and its requirements. I note there are no professional limitations placed on her. She is not expected to seek approval in her other work, whereas the Assistant Lecturers /Lecturers as contracted to the Respondent are under strict obligations. On the balance of probabilities, I prefer the Respondent’s position on this matter.

Consequently, she is not entitled to succeed in her claim under the Acts.

CA-00015211-001 - Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

The issue for decision here is whether or not the Complainant was subjected to discrimination by the Respondent on the grounds of her gender and family status in terms of the manner in which she was treated in her conditions of employment and maternity leave.

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”.

Section 6(1) of the Employment Equality Acts, 1998 to 2015 provides that discrimination shall be taken to occur where "a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2)”

In essence the Complainant’s case is that there is a general discrimination between part time associate lecturers working with the Lifelong learning Department and those lecturers on pro rata assistant lecturer/ lecturer grades employed by the Respondent to work with the day students full time courses.

The Complainant makes reference to Mr. X who she claims commenced employment some time after she was first engaged in employment with the Respondent and who applied for and was successful in a three year fixed term pro rata post with the school of business in 2013 who in turn had his contract converted into a pro rata part time Contract of Indefinite Duration in 2016. The Complainant said that it was not until her return from Maternity leave in September 2017 that she became aware of this fact. I note the Complainant claims that the discrimination is ongoing. I note that she also refers to historic maternity leave arrangements as far back as 2014.

The Respondent claims that the Complainant is one of 38 Employees in the Lifelong learning department, of which 16 are female and 22 are male, each and every one is in precisely the same circumstances and employment capacity as the Complainant. The claim that the Complainant was discriminated as compared with her comparator Mr. X, a Pro-rata Part time Assistance Lecturer on the gender and family status is not valid. The Respondent also maintains that she, an hourly paid-part time associate lecturer, cannot compare herself with Mr. X who is a Pro-rata Part time Assistance Lecturer.

I am satisfied that there are a number of impediments against the Complainant’s case under the Employment Equality Acts. The exact nature of the alleged discrimination appears to rest with the fact that Mr. X was offered a CID where she a woman having had two maternity leave periods was not offered a CID.

As a first step it is for the Complainant to establish a prima facia case as to the discrimination on the protected grounds. She had identified her comparator and notwithstanding my finding above under in CA-00010646-003- section 16 of the Protection of Employees (Part-Time Work) Act, 2001 that the Complainant and the Pro-rata Part time Assistance Lecturer grade are not comparable, it does not automatically follow that Mr. X cannot be a suitable comparator in this instance under the Employment Equality Acts. However, at the first juncture, the evidential burden needs to be met by her.

The Respondent has referred to the case in Southern Health Board v Mitchell [2001] ELR 201, and I agree that this is apt in the circumstances of this case. Here the Labour Court considered the extent of the evidential burden imposed on a Complainant by section 85A and held:

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

This approach has been endorsed and elaborated upon in several cases by the Labour Court including in Cork City Council v McCarthy EDA 21/2008, where the Labour Court stated:

“The type or range of facts which may be relied upon by a complainant may vary significantly from case to case. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference of presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.”

Considering the leading authorities above in detail, and coupled with the clear facts of the case, which I have carefully considered, I find that the Complainant has failed to establish any facts supporting her case that the difference in how she was treated is related to her gender or family status.

The Complainant’s circumstances are identical to the situation of all her other Lifelong learning associate lecturer colleagues in relation to the CID. I have heard there is a complete mixture of people here, with regard to gender and family status. The Complainant has asked me to only consider Mr. X in this part of the complaint before the Workplace Relations Commission as her comparator. However, I have to consider all the facts here, the reality of the working environment, all her colleagues in the Lifelong learning department and those assistant lecturers/lecturers form part of the real-life situation here. I have to look too at Ms. Y and her circumstances, - the Complainant’s comparator in the complaint under the Protection of Employees (Part Time Work) Act,- a pro rata assistant lecturer who also was on maternity leave period around the same time as the Complainant, and who was awarded a CID; and who is the same gender and family status as the Complainant. She is identical to the Complainant on the gender and family status grounds but was treated much more favourably.

All of the evidence suggests that there are indeed differences in how the two categories of Lecturers are treated, but it cannot be said that it is because of the protected grounds of gender and or family status. It’s clear that it is not, and a prima facie case of discrimination on those two grounds was not established.

I note the Complainant’s case with regard to (i) her maternity leave in 2014; and (ii) in respect of maternity leave which she may take in the future.

I note the reference to how she claims she was treated in 2014 in respect to her maternity leave. This is a historic claim of some three years prior to filing her complaint with the Workplace Relations Commission. The Respondent said the 2014 complaint is out of time.

Having regard for the provisions of section 77(5) of the Employment Equality Acts, I agree with the Respondent’s submission here and find that this element of the Complainant’s complaint is outside of the time limits available under the Act.

As regards to possible complaint’s she may have into the future – I simply cannot presuppose what will or will not happen into the future and there is no basis on which I can entertain this part of her complaint.

Accordingly, from the evidence adduced in these circumstances, I am satisfied that the Complainant has failed to establish a prima facie case of discriminated on grounds of gender and family status in terms of Section 6(2) and contrary to Section 8 of the Acts.

CA-00010646-001 - Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

The Complainant’s case is well-founded, and I order the Respondent to pay €500 [five hundred euro] in compensation for the contravention of the Act.

CA-00010646-002 Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

The Complainant’s case is not well-founded.

CA-00010646-003 - Complaint seeking adjudication by the Workplace Relations Commission under Section 16 of the Protection of Employees (Part-Time Work) Act, 2001

The Complainant’s case is not well-founded.

CA-00015211-001 - Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

The Complainant has failed to establish a prima facie case of discriminated on grounds of gender and family status in terms of Section 6(2) and contrary to Section 8 of the Acts.