ADJ-00021660

Complainant

Respondent

Anonymised Parties

A senior Executive Assistant

A business school

Representatives

Self.

Peter Flood Ibec

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00028300-001

09/05/2019

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

CA-00028300-003

09/05/2019

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

CA-00028300-004

09/05/2019

The Complainant was initially employed by the Respondent on a fixed-term contract for a period just in excess of 2 years. Prior to this contract ending she was promoted and issued with a 3 year fixed-term contract as a Senior Executive Assistant in the Respondent School.

The Complainant submitted complaints to the Workplace Relations Commission on 9th May 2018 and 15th June 2018.

By written statement the Complainant made the following points:

· If an employee whose employment started on or after 14 July 2003 has been employed on 2 or more continuous fixed-term contracts, the total duration of those contracts may not exceed 4 years. After this, if the employer wants the employee to continue in the job, they must be employed under a contract of indefinite duration (permanent contract).

· In my case I had 2 continuous contracts over a 5-year period in the same department (Admissions Administrator for 2 years and then promoted to Senior Admissions Administrator for 3 years). Therefore, after 4 years continuous service my contract with the Respondent was permanent, this was from December 2017. If the business requirements of the department changed, (which I am informed they did from December 2018) then other roles with the Respondent should have been considered for me before I was made redundant, redundancy should have been a last resort.

· Also, I should not have been informed of the business requirement change and redundancy while on protective maternity leave. I informed the Senior Manager in March 2018 when I was 3 months pregnant (due date was on 25 September 2018). I then noticed that on a team of 8 employees (and where I had been the second longest in service) I was the only person in the department who was not given one-to-one weekly performance meetings.

· I received an email to my work account in November 2018 to hear of the business requirement changes, while on protected and paid maternity leave. My work email access has since been revoked by the Respondent and I no longer have access to the emails. This was a breach of my rights. Also, the fact that I was on protective maternity leave makes this email void.

· The purpose of providing me with a temporary contract originally was “to provide temporary assistance to support and enable the Respondent to increase student numbers on Graduate Programmes over the following three-year period and to provide a quality and responsive Admission Service to meet the projected increase in student numbers”.

· This business need was clearly still there which is evident in the fact that 2 roles were then advertised in the department in November and December 2018. Also, this is clear from the student number increases which are outlined in the school admissions annual reports.

· In relation to providing a quality and responsive Admissions Service, the Complainant has received positive comments on social media.

· I wasn’t given the opportunity to be considered for the roles that were advertised and filled while I was on maternity leave, due to the timing. I have also since been informed by HR that one of roles needed to be filled by January 2019. This was a role I had held for 2 years and had then been promoted for another 3 years. My male colleague who was on a permanent contract and had been promoted from the same role I had done for 3 years but only for a few months, was automatically put back to his previous role (Admissions Administrator) at the same time I was told I was being made redundant, even though I was more senior to him.

· After 5 years of being a loyal employee in the admissions office, I wasn't even so much as given the opportunity to clear out my desk, take my belongings or say goodbye to my colleagues.

· Nobody even met with me or phoned me to give me the news. This was at best a disgracefully insensitive way to terminate the contract of a loyal employee.

On May 9, 2019 the Claimant alleged that she was discriminated on grounds of gender under the Employment Equality Act and that she was entitled to a contract of indefinite duration under the Protection of Employees (Fixed-Term Work) Act.

On June 15, 2019 she further alleged that the Respondent was in breach of the Maternity Protection Act, 1994 when she was not offered an interview for a new role at a suitable time.

These complaints are rejected by the Respondent.

The Claimant was not indirectly discriminated against on grounds of gender when she was not interviewed for the role of Admissions Administrator in December 2018. The Claimant was offered an interview but was unable to attend due to childcare issues. However, efforts were made to facilitate the Claimant, but she was not prepared to be flexible with the interview board to ensure she did interview for the role.

The Claimant had no entitlement to a contract of indefinite duration. She was employed on a fixed-term contract which expired on December 3, 2018 in line with the normal expiry date of the contract. The role she filled was not replaced. The Claimant was offered a redundancy payment on the termination of her employment. This is in line with normal practice in the Respondent organisation.

No breach of the Maternity Protection Act occurred in this case. The Claimant was no longer an employee of the Respondent on the day of interview I.e. December 17, 2018.

Background

The School

The Claimant worked at the School. The School admits approximately 1,000 to 1,100 students from 60 countries annually to its Programmes. Over 5,000 applications are received on-line and offers are made to over 2,000 applicants to obtain the 1,000 students.   The nature of the business is reviewed regularly to ensure it is fit for purpose. The School operates in a highly competitive international environment.   Reviews took place in the Autumn of 2015 and in September 2018. These reviews are done to ensure the School is operating in the most efficient manner.

The Claimant

The Claimant was initially employed as an Admissions Administrator in the Business School on a fixed-term contract for just over a 2-year period – September 9, 2013 to December 8, 2015.

Prior to this contract ending she was successful in a competition for a Senior Admissions Administrator role for the period December 4, 2015 to December 3, 2018 at the Business School.

The Claimant commenced maternity leave on September 17, 2018 and was still on maternity leave at the time her employment terminated with the University on December 3, 2018.

In her Notification to Take Maternity Leave Form the Claimant stated, “My Maternity Leave (26 weeks) is due to end on 03/12/2018 (Contract end date).” This Form was signed by the Claimant on June 18, 2018.

A letter also issued on July 30, 2018 confirming that her contract of employment would terminate on December 3, 2018. The Claimant later changed the commencement date of her maternity leave and she was issued with another letter re-stating her employment would terminate on December 3, 2018.

Vacancy of Admissions Administrator

On November 7, 2018 an email was sent to the Claimant by the Senior Manager Student Recruitment and Admissions, informing her of the vacancy of Admissions Administrator.

The role, which was a lower graded role than her then existing role, was a temporary role for 3 years.

The Claimant applied for the position on November 9, 2018.

On November 9, 2018 the Claimant requested by email that her temporary contract be extended until the outcome of the competition for the Admissions Administrator was known. She was informed that this was not possible.

On November 16, 2018 she contacted HR to enquire about payment for maternity leave should she be successful for the role of Admissions Administrator. She was informed that if this situation arose, she would be paid maternity leave until such entitlement was exhausted.

Offer of Interview

There were 42 applicants and 12 of these, including the Claimant, were shortlisted for interview. All the interviews were scheduled to take place on the same day.   The assessment of candidates took place on that day.

The shortlisting for interview was done by the Interview Board.

The Claimant had not reported to any of these managers.

On November 29, 2018 the Claimant was written to and offered an interview for the post of Admissions Administrator to take place on Monday December 17, 2018 at 10:25. The Claimant confirmed on November 30, 2018 that she would attend the interview on that date.

It had been challenging to get an interview board together. Furthermore, the interviews were taking place just prior to Christmas and some Interview Board members were taking leave of a number of weeks over Christmas.   Another Board member was due to travel abroad on business just after Christmas. Therefore, a decision on the appointment needed to be made prior to the Christmas break.

In a buoyant labour market, roles at this level are difficult to fill. A number of those called for interview did not attend the interview. Any delay in announcing the outcome of the competition is likely to have led to losing a suitable applicant.

However, on December 6, 2018 the Claimant contacted the HR Assistant organising the interviews that she would be unable to attend the interview on December 17, 2018 stating, “My other half is not able to babysit on 17th December.” She enquired if it would be possible to do the interview by Skype.

The HR Assistant made enquiries on her behalf but was informed that as the role was a client-facing one that it would not be possible to do the interview in this manner. The HR Administrator sent an email to the Claimant on December 10, 2018 setting out this position. On December 11, 2018 the Claimant informed the HR Administrator that her ‘other half’ was working and his presence at work on that particular day was indispensable. Her baby was only 9 weeks old and would not take feeding from anyone other than the mother or father. She requested that the interview be done on another day. The HR Administrator checked this with the interview board and was told that it was only meeting on that day. As an alternative the HR Administrator suggested another time for interview on December 17, 2018. The Claimant responded by email informing the HR Administrator that she was only available from 20:00 hours that day. The HR Administrator offered the Claimant an interview at an early time on December 17, 2018 (I.e. at 08:15) and also assured her that the interview would take no longer than 30 minutes.

The first interview had been scheduled to take place at 09:15.

The Claimant refused this offer of an early interview as her partner would not be at home.

As the Claimant could not be facilitated with an interview she was asked if she was withdrawing her application. She then enquired when the role would be filled.

When she was informed that it would be January her response was that she could not understand why she had been offered an interview.

However, it is University practice to offer an applicant an interview whether or not they are on any type of leave including maternity leave.

On December 18, 2018 the Resources Support Manager, wrote to the claimant referring to the timings not suiting the Claimant and the selection board but informing her that she was welcome to apply for future roles with the Respondent.

On December 20, 2018 the successful applicant was offered the role.

Employment Equality Act

The Claimant is alleging that she was indirectly discriminated against on the grounds of gender.

The Claimant was no longer an employee of the University at the time the vacancy of Administrative Assistant arose.

She initially accepted the interview date offered. This date was offered 17 days prior to interview. She then informed the University 11 days prior to interview that she could not attend on that day due to the unavailability of her partner to look after her baby.

The Respondent attempted to facilitate her by offering an earlier time for interview and guaranteeing that the interview would not take longer than 30 minutes. She rejected this offer to facilitate her.

The Claimant was living less than 4 Kms from the place of interview.

If she had taken up the offer of an early interview she could have been back home shortly after 09:00 on the day in question.  

The Claimant acted unreasonably, given the notice of interview, by not making an arrangement to have her child looked after for the very short period of time she would be away from home to attend the interview.

Protection of Employees (Fixed-Term Work) Act

The Claimant alleged that she was treated less favourably than a permanent employee, Mr B.

The Claimant and this permanent employee were employed on different types of temporary contracts.

The last contract for the Claimant was of 3 years duration. The objective justification for the contract was to “enable the College of Business to fulfil its strategy to increase student numbers on Graduate Programmes over the next 3 years and in parallel provide a quality and responsive Admissions Service to meet the projected 3-year increased demand from these students”

The comparator, on the other hand, was employed on a secondment contract for 7 months. The contract states that “As this secondment is 2 years or less in duration you will return to your substantive post and grade at the end of the secondment.”

Thus, the returning of Mr B to his permanent role is set out in advance in this contract. There was no referral to an extension of the Claimant’s employment with the Respondent.

There is no obligation to treat fixed-term and permanent employees the same to determine whether or not discrimination has occurred.

In the case Hill & Stapleton v Revenue Commissioners & Department of Finance (CJEU C-243/95) the Court of Justice of the EU stated in relation to the definition of discrimination that

“Discrimination can arise only through the application of different rules to comparable situations or the application of the same rule to different situations.”

The contracts of the Claimant and that of Mr B did not involve comparable situations. Their different situations being treated differently is not discrimination.

Furthermore, when signing her most recent contract with the Respondent the Claimant accepted that it was a fixed-term role and also accepted the objective justification grounds set out in that contract.

In the case National University of Ireland Maynooth v Dr Ann Buckley (FTD092) the Labour Court stated the following on the signing of a new (and second) fixed term contract

“The sections (of the contract) are plainly expressed and it was made clear that further fixed-term work, rather than a contract of indefinite duration was being offered.

…... The Court is of the view that the Claimant, having signed a binding contract agreeing to the objective reasons for its renewal on a fixed-term basis, cannot subsequently resile from this position and is therefore not entitled to a contract of indefinite duration.”

The purpose of the Act is not to outlaw temporary contracts but to prevent abuse in the use of successive fixed-term contracts. It achieves this through the requirement to have an objective justification for renewal of a fixed-term contract. The objective justification for offering the Claimant a fixed-term contract in December 2015 is set out in that contract. Her situation is not comparable to that of Mr B.

Maternity Protection Act

The Claimant is alleging what appears to be the same claim as that submitted under the Employment Equality Act i.e., she was not able to attend an interview on a particular day as she was breastfeeding her baby and her partner was not available to be with her child on the day of interview.

The Claimant was not an employee at the time.   Her employment had terminated on December 3, 2018 in line with the terms of her contract of employment.

The Statutory Instrument Maternity Protection (Protection of Mothers who are Breastfeeding) Regulations, 2004 defines an ‘employee who is breastfeeding’ as

“an employee whose date of confinement was not more than twenty-six weeks earlier, who is breastfeeding and who has informed her employer of her condition.”

As the Claimant was not an employee after December 3, 2018 then this regulation does not apply to her.

Furthermore, provision of facilities for breastfeeding relates to rights during employment and then only to paid time during employment for a period of time for breastfeeding and/or provision of facilities.

Conclusion

The Claimant was not discriminated against on grounds of gender in relation to access to interview for the role of Admissions Administrator in December 2018. The Interview Board tried to facilitate her, and the Claimant acted unreasonably in failing to make adequate arrangements to have her child looked after for a very short period of time on the day in question.

The Claimant was not discriminated against compared to a permanent employee. Their situations are not comparable. The termination of the Claimant’s fixed-term contract did not entitle her to a further contract of employment.

The Claimant was not an employee after December 3, 2018 and so no breach of maternity legislation occurred on December 17, 2018 connected to breastfeeding her child.

For all of the above reasons the Respondent is requesting the Adjudicator to reject these complaints.

CA-00028300-001 – complaint submitted under section 77 of the Employment Equality Act, 1998.

The Complainant commenced maternity leave on 17th September 2018 and was still on Maternity Leave when the term of her contract expired on 3rd December 2018. It was always the case that the contract would end on this date and this was confirmed by the Complainant in her “Notification of Intention to take Maternity Leave” form signed by both the Complainant and Respondent on 18th June 2018.

The Complainant applied for a position with the Respondent on 9TH November 2018 and also on this date sent the Respondent an email requesting that the term of her fixed-term contract be extended until the outcome of the competition for which she was a candidate. She was informed that it would not be possible to grant this extension.

On 29th November 2018 the Complainant was notified that she had been shortlisted for the position and was invited to attend for interview on Monday 17th December 2018. On 30th November the Complainant notified the Respondent that she would attend for interview as requested on 17th December 2018.

On 6th December 2018 the Complainant contacted the Respondent’s HR section informing them that she would not be able to attend for interview on 17th December as her partner would not be available to babysit on 17th December 2017. She then went on to explain that the baby could only be fed by either herself or her partner.

It was clearly stated by the Respondent that there had been considerable difficulties to overcome to form an interview board for this competition and it being so close to Christmas it would be impossible to arrange a second date for interviews. As an alternative the Complainant was offered an interview at 8.15 am on 17th December and assured that the interview would not last more than 30 minutes. The Complainant informed the Respondent that she would only be available from 20.00 on the 17th December, this time was not suitable for the interview board.

As stated in her complaint form the Complainant alleges that the most recent date of discrimination took place on 3rd December 2018. There was no reference to any discrimination taking place on this date at the hearing of the complaint. The only point notable on this date is that it was the Complainant’s final day of employment with the Respondent.

It was claimed by the Complainant that the refusal to change her interview date constituted discrimination on the Gender ground. As this all occurred when the Complainant was no longer an employee of the Respondent.

The Employment Equality Act 1998, as enacted, is an “An Act to make further provision for the promotion of Equality between employed persons”; …………..

I have no jurisdiction to hear this complaint as presented by the Complainant. I therefore find that the complaint as presented is not well-founded.

CA-00028300-003 – complaint submitted under section 14 of the Protection of Employees (Fixed-Term Work) Act ,2003.

The Representative of the Respondent clearly stated the following:

The Claimant alleged that she was treated less favourably than a permanent employee, Mr B.

The Claimant and this permanent employee were employed on different types of temporary contracts.

The last contract for the Claimant was of 3 years duration. The objective justification for the contract was to “enable the College of Business to fulfil its strategy to increase student numbers on Graduate Programmes over the next 3 years and in parallel provide a quality and responsive Admissions Service to meet the projected 3-year increased demand from these students”

The comparator, on the other hand, was employed on a secondment contract for 7 months. The contract states that “As this secondment is 2 years or less in duration you will return to your substantive post and grade at the end of the secondment.”

Thus, the returning of Mr B to his permanent role is set out in advance in this contract.   There was no referral to an extension of the Claimant’s employment with the Respondent.

The contract signed by the Complainant on 3rd December 2015 clearly provides a legitimate objective as to why the contract is one of fixed-term, this contract was signed and agreed by the Complainant.

This complaint is not well-founded.

CA-00028300-004 – complaint submitted under sections 30 & 31 of the Maternity Protection Act 1994.

The Respondent’s representative presented a strong legal challenge to the Complainant’s right to submit a complaint under this legislation:

The Claimant is alleging what appears to be the same claim as that submitted under the Employment Equality Act i.e. she was not able to attend an interview on a particular day as she was breastfeeding her baby and her partner was not available to be with her child on the day of interview.

The Claimant was not an employee at the time. Her employment had terminated on December 3, 2018 in line with the terms of her contract of employment.

The Statutory Instrument Maternity Protection (Protection of Mothers who are Breastfeeding) Regulations, 2004 defines an ‘employee who is breastfeeding’ as

“an employee whose date of confinement was not more than twenty-six weeks earlier, who is breastfeeding and who has informed her employer of her condition.”

As the Claimant was not an employee after December 3, 2018 then this regulation does not apply to her.

I have no alternative but to decide that this complaint is not well-founded.

As outlined above.