Complainant

Respondent

Anonymised Parties

A Training Specialist

A Pharmaceutical Company

Representatives

Ms. Caroline Doyle B.L. on the instructions of Sean Ormonde & Co. Solicitors

Mr. Dermot Cahill B.L. on the instructions of McCann Fitzgerald Solicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00031525-002

11/10/2019

The Complainant was employed by the Respondent as a Training & Development Specialist from 29 November, 2004 until 23 August, 2019 when she resigned her employment. The Complainant was initially employed on a full-time basis and worked a 39-hour week until December, 2017 when her working week was reduced to 23 hours by agreement following her return to work after a period of maternity leave. The Respondent sought to terminate this agreement with effect from 4 June, 2019 on the basis that the operational needs of the business had changed and that she was required to work to a 39 hour week. The Complainant contends that she did not consent to the increase in her hours and that the Respondent sought to unilaterally alter the amendment to her contract of employment in December, 2017 which had provided for a permanent reduction in her weekly hours to 23 hours per week.

The Complainant claims that the Respondent’s decision to unilaterally alter her contract of employment amounted to direct and indirect discrimination on the grounds of gender, family status and disability. The Complainant claims that she was discriminatorily constructively dismissed due to the manner in which she was discriminated against by the Respondent on the grounds of her gender, family status and disability. The Complainant also claims that she was subjected to victimisation by the Respondent contrary to Section 74(2) of the Acts.

The Respondent disputes the claims of discriminatory treatment, constructive discriminatory dismissal and victimisation made by the Complainant under the Acts.

Complainant’s Position on Issue of Jurisdiction

The Complainant disputes the issue raised by the Respondent that the Adjudication Officer does not have jurisdiction to inquire into the complaint because the incorrect Respondent has been impleaded in these proceedings.

The Complainant submits that the Adjudication Officer has a discretion under Section 77(5) of the Act to add a party to the proceedings, in this case, XYZ Limited. The Complainant was advised in March 2019 that her permanent contract was to be unilaterally altered and the change was to take effect in June 2019. The Complainant submits that she worked with the Respondent until her discriminatory constructive dismissal on the 23 August 2019. The Complainant submits that the discrimination quite clearly extended over a period of time from the initial discriminatory act in March 2019 until her ultimate dismissal on 23 August 2019. As such, the conduct can be considered as a continuing act, rather than an isolated incident. The Adjudication Officer is therefore entitled to affirm that the 23 August 2019 is the most recent date of the offending conduct and the relevant date insofar as calculating the reference period is concerned. This effectively means that as of the date of the WRC hearing (on 20 February 2020), the Complainant was within the 6-month time frame noted in Section 77(5)(a) of the Act.

In reliance on the above point, the Complainant referred to the Supreme Court judgement in County Louth VEC -v- Equality Tribunal [2016] IESC 40 which considered the power of an Equality Officer to enquire into a complaint which was not referred to in the original complaint form. The Complainant submits that the Supreme Court considered the provisions within both Section 77(6A) and Section 77 of the 1998 Act, and confirmed that where either “a regime or practice exists, or where a continuum of discrimination can be established”, then it is possible to plead matters that have occurred well beyond a six-month period. The Complainant submits that the Adjudication Officer can add XYZ Limited to the proceedings without any obligation to consider whether reasonable cause has been made out as per Section 77(5)(b) of the Act. The Complainant submits that in those circumstances, the Adjudication Officer proceed on this basis.

The Complainant submits that in the alternative and without prejudice to the foregoing, if the Adjudication Officer does not consider that the discrimination in question was a continuing act, the Complainant’s complaints have been referred within the 12-month period as set out in Section 77(5)(b) of the Act. It was submitted that under Section 77(5)(b) of the Act, the Adjudication Officer has a discretion to substitute the name of the Respondent even where the 6-month limitation period has expired, where reasonable cause is shown. The Complainant submits that she was advised in March 2019 that her contract was to be unilaterally altered and the change was to take effect in June 2019 (the discriminatory act giving rise to her complaints). As at the date of the WRC hearing (20 February 2020), the Complainant’s complaints are within the 12-month period noted in Section 77(5)(b) of the Act. The Complainant submits that in those circumstances the Adjudication Officer can exercise his discretion to add XYZ Limited as a Respondent in these proceedings, and it is further submitted that reasonable cause has been shown in the circumstances.

The Complainant submits that there is no dispute that at the time she joined the Respondent’s company she was employed by XYZ Limited. The Complainant submits that in or around 2011, a number of meetings were held with staff in relation to the merger with ABC and that staff were informed that they were no longer to refer to themselves as employees of XYZ, but rather ABC.

The Complainant submits that there is well-established case law to demonstrate that the identity of an employee’s employer can be established through the control test, the integration test and the economic reality test, and not merely through the nominative designation of the relationship between the parties (Minister for Agriculture and Food v Barry [2009] 1 IR 215; Henry Denny & Sons v Minister for Social Welfare [1998] 1 IR 34). It is quite clear that XYZ Limited was integrated into the business of ABC following the merger in 2011, and as a matter of economic reality, the Complainant was performing work for ABC. This is again, quite clearly illustrated by the correspondence. It is evident that the Complainant named ABCs Ireland Limited as the Respondent to these proceedings in circumstances where there was a genuinely held belief that this entity was her employer.

The Complainant submits that the Respondent is not entitled to rely upon the Labour Court case of Sylwia Wach v Travelodge Management Limited [2016] ELR 22 in support of its claim that the she is statute-barred from adding XYZ Limited as a party to these proceedings. The Complainant submits that it is wholly important to distinguish the facts relied on by the Labour Court in coming to its decision in the Wach case from those in the index proceedings. In Wach, the Complainant had succeeded at first instance before the Equality Officer in circumstances where the Respondent was not in attendance to defend those proceedings. It was only after a decision had issued from the Equality Officer and when the matter came before the Labour Court on appeal, that the Respondent engaged and made the case that the Complainant had named the wrong Respondent. Ultimately, the Labour Court determined that it could not substitute the name of the employer as the time limit for the claim had expired by the time the Labour Court came to hear the appeal.

The Complainant submits that this is not the position in the instant case. In the first instance, the Respondent was present at the hearing before the Adjudication Officer on the 20 February 2020. The Respondent raised the issue of the identity of the employer for the first time in its written submissions dated 18 February 2020, some two days prior to the scheduled hearing. It was submitted that the issue the Adjudication Officer has to decide is whether it can use its discretion under Section 77(5)(b) of the Act to add XYZ Limited as a party to these proceedings. The important fact which distinguishes this case from Wach, is that the Adjudication Officer is not precluded from doing so as the statute has not expired. The 12-month period had not expired as of the date of the hearing. The Complainant submits that it has clearly been established that there was reasonable cause within the meaning of Section 77(5)(b) of the Act.

The Complainant submits that it is well established in case law that a Court or Tribunal should not adopt a more stringent stance in relation to the substitution of parties that is available in the High Court (as per County Louth VEC v Equality Tribunal [2009] IEHC 370 and which has beenaffirmed by the Supreme Court and has also been followed in a number of employment related cases, including Clare County Council v Equality Tribunal [2011] IEHC 303, Department of Foreign Affairs v Cullen (EDA 0611), and Gutaskiene v ALPS Electric Ireland Ltd (DEC-E2016-061)). The Complainant submits that in circumstances where the limitation period in the action has not expired against XYZ Limited, and the Complainant is therefore not statute barred under Section 77(5) of the Act, the Adjudication Officer should rightfully add XYZ Limited to the proceedings.

The Complainant submits that the Respondent in the instant case, effectively sat on its hands for four months before raising its preliminary objection in relation to the identity of the Respondent less than two days before the WRC hearing. It was submitted that the conduct of the Respondent in relation to its dealings with the Complainant in this regard can only be viewed as the type of unconscionable conduct referred to by the Supreme Court in Murphy v Grealish [2009] IESC 9. The Complainant submits that the Respondent is not entitled to rely on such conduct in support of its objection.

The Complainant submits that the TUPE Regulations apply to this case in circumstances where XYZ Limited was acquired by ABC in 2011 and that the onus rests with the Respondent to prove otherwise.

Complainant’s Case on Substantive Issue

The Complainant commenced employment with the Respondent as a Training and Development Specialist in November, 2004 and submits that she performed superbly well in her role and was never the subject of any disciplinary or performance relates issues during her period of employment.

The Complainant was initially contracted to work a 39-hour week. The Complainant took her first period of maternity leave from July, 2013 to April, 2014 and a second period from November, 2014 until September, 2015. In July, 2016, the Complainant requested a Flexible Working Arrangement to facilitate her family life which meant that she would be working 31 hours over three days per week. This arrangement also included her taking one day Parental Leave per week. The Respondent accepted this new arrangement and issued the Complainant with a change to her terms and conditions of employment. The Complainant took her third and final maternity leave from February, 2017 to November, 2017 having availed of the additional 16 weeks unpaid leave.

In October, 2017, before her return to work, the Complainant had a telephone conversation with her Team Leader (Ms. A) in which she indicated her intention to resign because the Respondent would not work with her to secure a more permanent flexible working arrangement. At this time the Complainant had three young children and managing them while balancing her work life was becoming a struggle. The Complainant was still managing to complete her full workload without any delay or mistakes. The Complainant’s Team Leader expressed the view that she was very fond of the Complainant and asked her not to decide until she had a chance to speak to the Quality Manager (Ms. B) to see if a part-time position could be negotiated. The Complainant indicated to her Team Leader that she would require a three-day week on a permanent basis to facilitate her family commitments and was seeking an amendment to her contract of employment to reflect this work pattern.

The Complainant was contacted by her Team Leader (Ms. A) a short time later and was informed that the Respondent had agreed to change her contract to allow her to work 23 hours per week over three days. The Complainant submits that she was issued with correspondence from the Respondent’s HR Business Partner (Ms. C) on 23 October, 2017 and 21 December, 2017 which amended her contract and confirmed this change to her weekly working hours. The Complainant understood this agreement to be a distinct change to her working contract rather than an application for flexible working under the Respondent’s Flexible Working Arrangement procedures. The letter stated that the agreement would be subject to review every six months. However, the Complainant understood that this was a permanent arrangement as the letter did not state otherwise and that it could not be terminated without the consent or agreement of both parties.

The Complainant submits that she commenced working under the new contractual arrangements in October, 2017 and no formal review of this agreement ever took place between this date and March, 2019. The Complainant attended a meeting with her Team Leader (Ms. A) on 1 March, 2019 in which she was informed that HR were to carry out a review of all “short-time” contracts on site and that all such contracts were being scrapped. The Complainant and her Team Leader discussed the possibility of taking parental leave instead. The Complainant was not opposed to this but struggled to understand why this was necessary when she already had a permanent amendment to her contract of employment. The Complainant emphasised that a 39 hour contract was just not an option at that juncture due to childcare and would not provide the stability for her children which she so required. The Team Leader informed the Complainant that she would discuss the matter with HR but was subsequently informed by the HR Director that all short-time contracts were being terminated.

On 20 March, 2019, the Complainant was given a letter by her Team Leader from the HR Department which stated that her 23 hour week was being terminated and that she would have to revert to a 39 hour week with effect from 4 June, 2019. The Complainant was left confused and distressed by this situation as she was not in a position to return to working a 39 hour week due to her family commitments. The Complainant submits that she had understood that the amendment to her working arrangement was permanent and could not be unilaterally changed by the Respondent without her consent or agreement. The Complainant subsequently had discussions with the HR Director and the HR Business Partner in relation to this matter and reinforced her position that the amendment to her contract had been permanent and that she was not in a position to return to full-time employment. On 3 April, 2019, the Complainant had a further meeting with the HR Business Partner who advised that her contract had been reviewed by the Respondent’s legal team and they were satisfied that the company could terminate her 23 hour per week agreement.

On 5 April, 2019, the Complainant informed the Quality Manager (Ms. B) that she was unhappy with the outcome and that she wished to invoke a formal grievance in relation to the matter under the Respondent’s internal procedures. The Complainant sent a detailed letter to Ms. B outlining the specific nature of her grievance and emphasised that the sole reason for requesting an amendment to her contract off employment in October, 2017 had been for her children’s sake and that the Respondent’s attempt to undo this agreement when they were aware of her family status felt like an attack on her and her family.

The Complainant submits that she fully exhausted all stages of the Respondent’s internal grievance procedures in relation to the decision to revoke the agreement and require her to return to work on a full-time basis. However, the Respondent failed to uphold her grievance and was informed on 29 May, 2019 following the culmination of the internal procedures that she was required to return to work on a full-time basis (on a 39 hour week) with effect from 4 June, 2019. The Complainant submits that the Respondent failed to recognise during the course of the grievance procedure that she had agreed a permanent amendment to her contract in October, 2017 to allow her to work a 23 hour week. The Complainant stated that the Respondent’s suggestion that she could apply to take parental leave one day per week following her resumption of full-time working was totally unsatisfactory to accommodate her family situation and childcare commitments.

The Complainant submits that the Respondent failed to take on board her concerns about the requirement to resume full-time employment and that she was forced to attend her doctor on 30 May, 2019 and was certified unfit for work for a month as to a result of stress. The Complainant stated that she was contacted almost immediately thereafter by her Team Leader (Ms. A) and advised that she had one week to think about what she wanted to do in relation to the resumption of full-time employment. The Complainant contacted her Team Leader on 10 June, 2019 and advised her that she was very stressed about the whole situation and was not in the correct frame of mind to make such a serious decision at that juncture.

On 6 June, 2019, the Complainant received a letter from the HR Department stating that she would not be paid for “any future sick leave” with effect from 1 June, 2019. The reason given for same was that the Complainant had been absent from work for a “total of 96 hours equating to 4 working weeks and to date had been paid in full”. The Complainant did not receive a breakdown of these 96 hours and questions the veracity of these figures. After taking some time to discuss same with her family, the Complainant replied to the Respondent on 24 June, 2019 asking why she was being treated less favourably now that she was suffering from a mental health issue rather than a pregnancy issue. The Complainant offered to attend the Company doctor but was given no appointment and didn’t even receive an acknowledgement from the Respondent. The Complainant included another sick cert from her doctor declaring her unfit for the month of July.

The Complainant submits that she was never contacted by the Respondent until she handed in her notice. The Complainant contacted her Manager (Ms. B) by telephone prior to her resignation to advise that she would be handing in her notice after 15 years of employment. The Complainant stated that she was surprised by her Manager’s response “That is great, it will be great to end the stress”. The Complainant stated that she was shell-shocked and didn’t respond but instead told her Manager that she would be taking holidays for the remainder of her notice period. The Complainant notified the Respondent by letter dated 2 August, 2019 of her resignation and indicated that the decision to unilaterally change her contractual status back to 39 hours per week made her continued employment untenable. The Complainant submits that ironically, when her Manager was liaising with Payroll to work out her outstanding entitlements it was confirmed that her 23 hour working week had not been terminated. The Complainant maintains that the reason for this was due to the fact that Payroll could not make the necessary changes to the system without her consent.

Submissions

Direct Discrimination

The Complainant submits that she was subjected to direct discrimination on the grounds of gender and family status by the Respondent in relation to her conditions of employment. The Complainant worked on a part-time basis with the Respondent to facilitate her familial obligations. The Respondent determined that it required a full-time Training and Development Specialist. The Complainant repeatedly explained that her familial obligations would not permit her taking on the role full-time. Despite the Complainant’s objections and explanations regarding same and despite fully exhausting the Respondent’s grievance procedure pursuing the matter, the Respondent determined without any further recourse to the Complainant that her 23 hour contract was to be terminated and that she was required to return to a 39 hour working week. Given the Complainant’s familial obligations and exhaustion of the grievance process, this left her with no option other than to resign her employment. The Complainant submits that same amounts to direct discrimination on the grounds of her gender and family status.

The Complainant also submits that she was subjected to discrimination on the grounds of disability. The Complainant contends that she was suffering from mental health issues, namely anxiety and stress, as a result of the Respondent’s decision to terminate her contractual agreement to work 23 hours per week over three days. The Complainant submits that this condition amounts to a disability within the meaning of Section 2(1) of the Acts. The Complainant submits that she went absent from work on certified sick leave in early June, 2019 due to stress and was unable to return to work prior to the termination of her employment. The Complainant contends that the Respondent was fully aware of the nature of her disability and that it failed to refer her to the Company’s Occupational Health Physician or put any measures in place to provide reasonable accommodation for her disability. The Complainant submits that this amounts to discriminatory treatment on the grounds of her disability.

Indirect Discrimination

The Complainant submits, without prejudice to the foregoing, that she was subjected to indirect discrimination on the grounds of her family status. The Complainant referred to the three-step test set out in the case of Bilka-Kaufhaus Gmbh -v- Weber von Hartz [1986] ECR 1607 which an employer must satisfy to establish a defence of objective justification in a claim of indirect discrimination.

The Complainant submits that the Respondent has indicated that its motive in seeking to change the Complainant’s role to a full-time position was based on the operational needs or a “real need” as per the three-step test. However, the Complainant submits that the Respondent cannot satisfy step two of the test i.e. that the discriminatory measure was appropriate to achieve the aim and that the effect of the less favourable treatment on the Complainant was proportionate to the need of the employer intended to be achieved. The effect of the discriminatory measure was that the Complainant lost her employment, income (which was significantly more favourable to her than the market rate) and flexibility in work (which was an absolute necessity given her family status and difficult to secure in the market). It was submitted that in an employment setting there is no more severe discriminatory effect than losing your employment. The Complainant submits that this far outweighs the value of the outcome secured by the Respondent as a result of same – namely that it was able to seek to replace the Complainant with a full-time training specialist.

The Complainant further submits that the Respondent cannot satisfy step three of the test i.e. that the measure was necessary to achieve the objective and that there were no alternative means to do so which would have had a lesser effect. It is submitted that the Respondent failed to give proper consideration to less discriminatory alternatives. The Complainant submits that the Quality Manager (Ms. B) carried out the “review” that formed the foundation of the decision that the Complainant’s 23 hour contract could be unilaterally reneged upon and the Complainant was required to return to full-time employment. As part of this review, Ms. B and the Respondent failed to give any consideration whatsoever to alternatives to this proposed course of action that would have had a less discriminatory effect on the employment of the Complainant. It was submitted that there was no consideration given whatsoever to either recruiting new personnel on a full-time basis to make up for this loss of headcount or recruiting new personnel on a part-time basis to enter into a job sharing arrangement with the Complainant. Further, there was no consideration or analysis as to whether the Complainant’s suggested increase to a 27-hour working week would be operational in the circumstances.

The Complainant submits that the three-stage test in Bilka-Kaufhaus requires that the discriminatory measure be “necessary”, not preferable, more convenient or cheaper. It was submitted that the Respondent at the time this matter was unfolding, failed to consider less discriminatory alternatives to the course of action that was pursued. As such, it was submitted that the Respondent has not satisfied the three-step test and therefore, cannot avail of the defence of objective justification.

Victimisation

The Complainant submits that she was subjected to victimisation by the Respondent contrary to Section 74(2) of the Acts for having raised a grievance regarding the discriminatory manner in which she had been treated in relation to her conditions of employment. The Complainant submits that the Respondent failed to address or investigate the internal grievance adequately and sought to victimise her by removing her sick pay and refusing to send her to the company doctor.

Discriminatory Constructive Dismissal

The Complainant submits that she was also subjected to a discriminatory constructive dismissal arising from the manner in which she was discriminated against by the Respondent on the grounds of her gender, family status and disability. The Complainant contends that she had brought a number of matters to the attention of the Respondent and had reasonably lost faith in the manner in which same had been dealt with. The Complainant contends that the Respondent failed to understand the importance of the permanent amendment made to her contract in October, 2017 by flippantly disregarding the effect that the requirement to return to full-time employment would have on her and her family. The Complainant submits that this behaviour by the Respondent was so unreasonable as to leave her with little choice other than to resign her employment. The Complainant also claims that the requirement to resume full-time employment amounted to a repudiatory breach of the contract of employment, such that the Complainant was entitled to treat the contract as terminated and herself dismissed.

The Complainant relied upon the following cases in support of her position, namely: Ntoko v Citibank [2004] ELR 116; Dublin Corporation v Gibney EE55/1986; a Technology Company v A Worker EDA0714; Defrenne (No. 2) v Sabenna Airlines [1976] ECR 455; Dekker v Stichting VJV Centrum C177/8; Campbell v Bank of Ireland Private Banking DEC-E2013-046; Byrne v Minister for Defence [2017] IEHC 453; Allen v Independent Newspapers [2002] ELR 132; A Worker (Mr. O) v An Employer [2005] ELR 132; An Employer v A Worker (Mr. O)(No. 2) EED0410; Reilly v United Parcel Service Ireland Limited DEC-E2103-077; Inoue v NBK Designs Limited ED/02/34; Bilka-Kaufhaus GmbH v Weber Von Hartz [1986] ECR 1607; Lommers v Minister van Landbrouw Natuurbeheer en Visseri [2002] IRLR 430 and Rinner-Kuhn v FWW Spezial-Gebaudereinigung GmbH & Co [1989] ECR 2743.

The Complainant adduced oral evidence at the hearing in relation to her complaint.

Respondent’s Position on Issue of Jurisdiction

The Respondent raised a jurisdictional issue that the Complainant has impleaded the incorrect legal entity, namely ABC Limited, as the Respondent to these proceedings. The Respondent submits that the Complainant was employed by a legal entity called XYZ Limited and that she is now statute-barred from amending or adding this entity as a party to the proceedings. The Respondent submits that in these circumstances the instant complaint has not been properly referred to the WRC and therefore, the Adjudication Officer does not have jurisdiction to inquire into the substantive complaint.

The Respondent submits that the Complainant’s contract of employment, other official company documentation and payslips identified her employer as XYZ Limited.

The Respondent accepts that case law from both the Labour Court and the Superior Courts suggests that an Adjudication Officer has discretion to allow amendments to a complaint or to substitute a party named on a complaint form. However, the Respondent submits that the Labour Court held in both Department of Foreign Affairs –v- Cullen EDA 6/2011 and Travelodge Management Limited –v- Wach EDA 11/2015 that an amendment will not be allowed if its effect would be to allow the Complainant to pursue a cause of action which would otherwise be excluded by Section 77(5) of the Employment Equality Acts.

The Respondent submits that in order to determine whether the Complainant’s cause of action would be excluded by Section 77(5) of the Acts as of the date of the hearing (i.e. 20 February 2020), it is necessary for the Adjudication Officer to determine whether (i) an act of discrimination or victimisation took place; and (ii) the last date on which such discrimination or victimisation occurred.

The Respondent submits that the Complainant has failed to demonstrate that a continuing act of discrimination has occurred which would bring the matter within the 6-month time limit specified in Section 77(5) and allow the Adjudication Officer to substitute the correct Respondent.

The Respondent further submits that in circumstances where the Adjudication Officer does not consider that the discrimination in question was a continuing act, the Complainant has failed to establish that there has been reasonable cause which would allow her to avail of an extension of the statutory time limit from six months to twelve months for the purpose of the referral of a fresh complaint to include the correct legal identity of her employer (i.e. XYZ Limited).

The Respondent acknowledges that XYZ was acquired by ABC in 2011 and that the business began to refer to itself as “ABC” following that merger. However, the legal entity which employed the Complainant was and has remained XYZ Limited and this is evident from the Complainant’s contract of employment, the correspondence from the Company and her payslips.

The Respondent submits that the Complainant’s reference to the control and integration tests which have been applied by the Courts in order to determine employment status in the context of her applicant to amend the name of her employer is misplaced. The Respondent submits that the control and integration tests are applied by the Courts to determine whether an individual should properly be considered as an employee or an independent contractor and they do not affect the concept of separate legal personality which has been recognised since the case of Salomon –v- Salomon and Co Limited [1897] AC 22.

The Respondent submits that it is worth noting that in the case of Ballarat Clothing Limited –v- Aziz EDA 1/2015, while the Labour Court did allow the applicant to substitute the respondent listed in her complaint form, this was in circumstances where she was not legally trained and had not been legally advised. In this case, the Complainant had the benefit of legal advice in addition to “XYZ Limited” being listed on her contract of employment, on correspondence from her employer and on each of her payslips. It was submitted that the standards expected of legal representatives in this respect is evident from the decisions of the WRC and the Labour Court which consistently hold that inadvertence will not be accepted as excusing a delay in the submission of a complaint. For example, in the case of An Off-Licence Supervisor –v- An Off-Licence ADJ-00001568 the Adjudication Officer refused to extend the time limit beyond the 6 month limit as he was not satisfied that an omission on the part of a trainee solicitor which caused the complaint to be submitted 8 months after her dismissal, amounted to reasonable cause within the meaning of Section 77(5).

The Respondent wholly refutes the Complainant’s suggestion that it has engaged in any form of unconscionable conduct in raising the issue of the identity of the Complainant’s employer by submissions issued on 18 February 2020 in circumstances where it responded to the submissions of the Complainant in the normal course.

The Respondent also disputes the Complainant’s contention that her employment transferred to ABC Limited by way of a transfer of undertakings in 2011. The Respondent submits that the TUPE Regulations do not arise in circumstances where the acquisition of XYZ Limited took place by means of a share sale and the legal identity of the company did not change.

Respondent’s Case on Substantive Issue

The Respondent submits that the Complainant availed of three periods of ordinary and additional maternity leave in accordance with her entitlements under the Maternity Protection Acts during her period of employment. The Complainant received full pay for all periods of ordinary maternity leave in accordance with the Respondent’s maternity leave policy. In May, 2015, the Complainant requested parental leave in the form of one day off per week which was granted and facilitated by the Respondent. In July, 2016, the Complainant requested and was facilitated with further amendments to her working arrangements (which consisted of a 31 hour working week with a day per week of parental leave) in accordance with the Respondent’s Flexible Work Policy. This policy provides that there is no automatic entitlement to a flexible working arrangement and that an employee who has been granted such an arrangement may at any stage be requested to return to normal working hours subject to the business requirements of the organisation. The Complainant’s flexible arrangement commenced on 8 August, 2016 and continued until the commencement of her third period of maternity leave in February, 2017.

The Respondent submits that the Complainant informed her Team Leader (Ms. A) towards the end of her maternity leave in October, 2017 that she was considering handing in her notice as she was concerned that she would not be able to maintain an appropriate work/life balance on her return to work. The Respondent was anxious to facilitate the Complainant with a flexible arrangement compatible with the business needs of the organisation and she was offered an updated arrangement consisting of a 23 hour working week, in accordance with the company’s Flexible Work Policy. This arrangement was communicated to the Complainant by letter dated 23 October, 2017 and further documented by letter dated 21 December, 2017, which was signed by the Complainant and the Respondent. The Respondent submits that these letters referred to the company’s Flexible Work Policy and also provided that the agreement in relation to the flexible working arrangements “will be subject to review every six months to ensure that both parties are satisfied with the new working arrangement”.

The Respondent submits that the letter dated 21 December, 2017 was a continuation of the existing Flexible Working Arrangement and not an entirely new or bespoke agreement as has been contended by the Complainant. In October, 2017, the Complainant sought, and the Respondent agreed, to a further amendment to that Flexible Working Arrangement to facilitate her when the business needs of the company could accommodate same. The Respondent submits that the arrangement was always a temporary one and subject to the overriding needs of the business.

The Respondent submits that the Complainant’s flexible working arrangement continued, without issue, until early 2019. Throughout that period the Complainant completed a high volume of administrative work, which was conducive to her flexible working arrangement which was another example of the Respondent facilitating the Complainant. In early 2019, it became evident through people surveys conducted across the Respondent’s organisation, that the single biggest area of concern was an inadequate training structure.

The Respondent submits that it operates in a highly regulated industry which involves the manufacture of pharmaceutical products and a rigorous level of training to a high standard is essential for business. The Training Department (i.e. the Complainant’s Department) conducted a full review of its operations and various targets were set including minimum targets to be delivered by December, 2019. These included re-designing quality assurance training to provide for an upskilling programme, developing a quality control training plan and monitoring and managing operational, quality control and engineering training. At the time the Training Department employed two Training Administrators and two Training and Development Specialists (of which the Complainant was one).

The Respondent submits that in order to achieve those targets, it was necessary for all administrative work to be re-allocated to the Training Administrators and for the two Training and Development Specialists on the team to be dedicated to those targets full-time. In addition, in circumstances where the number of staff members in the Quality Systems & Compliance Department was continually decreasing (headcount reduced from 31 to 23 in the course of 2019) it was not possible to continue to facilitate flexible working arrangements in the form of reduced hours. The Respondent submits that the Complainant’s colleague, who worked as a Training Administrator was also asked to increase her hours. This colleague was being facilitated by the Respondent in availing of her statutory entitlement to Carer’s Leave and therefore the increase was implemented on a phased basis. A similar arrangement was also open to the Complainant who was given the option of availing of her statutory entitlement to parental leave which the Respondent would facilitate being taken in the form of one day off per week (giving her a working week of 31 hours).

On 12 March 2019, the Complainant’s Team Leader, Ms. A, met with her to discuss the changing business needs and explained that, in the circumstances, it would no longer be possible to continue with her current arrangement which allowed her to work a 23 hour week. The Respondent submits that this accords with the provisions of the Respondent’s Flexible Work Policy which provides that “an Employee or Team Leader/Manager can initiate discussion about modifying or terminating a [fixed term working arrangement] at any time”. The Complainant was informed however that she could apply for parental leave, which would allow her to work a 31 hour week instead of the full 39 hours.

On 14 March 2019, the Complainant again met with her Team Leader and proposed increasing her hours from 23 to 27 hours per week. However, having discussed this proposal with her Manager, the Team Leader reverted to the Complainant on 21 March 2019, to inform her that it would not be possible for the Respondent to facilitate a 27 hour working week as the business needs required the Training & Development Specialist to work at least 4 days per week. The Team Leader also provided the Complainant with a letter from the Respondent containing written notice of the ending of her flexible working/reduced hours arrangement. This letter informed the Complainant that her normal hours of work would revert to 39 hours per week and that her salary and annual leave entitlements would be increased accordingly. As the changes to her working arrangement were to come into effect on 4 June 2019, it also provided her with two and a half months’ notice of the change.

The Respondent submits that the Complainant was dissatisfied with the ending of her reduced working hours arrangement and availed of the internal grievance procedures which afford employees a pathway to air a concern that they have. In accordance with the policy, the Complainant expressed her concerns to her Team Leader, who referred the Complainant to the Respondent’s HR team. The Complainant met with the HR Business Partner, on 27 March 2019 who listened to the Complainant’s concerns and discussed the Respondent’s Flexible Working Policy with her. The HR Business Partner informed the Complainant that she would review her contract in conjunction with the Respondent’s Flexible Work Policy and get back to her. The HR Business Partner held a further meeting with the Complainant on 3 April 2019 to inform her that having reviewed the documentation, she did not consider there was any impediment to the Respondent’s request that the Complainant revert to a normal working week of 39 hours in accordance with the Respondent’s business needs. Again, the Complainant was informed that she could apply for parental leave in the normal course. That process concluded stage 1 of the Dealing with Concerns policy and procedure.

The Respondent submits that having undertaken her review as promised, Ms. B was of the view that given the scope of the work to be undertaken by the Training Department and the decreasing resources and personnel across the Quality Systems & Compliance Department as a whole, it was not possible for the Complainant to continue to avail of a 23 hour week and meet the business needs of the Department. The minimum requirements for the Training Department in 2019 were significant and the headcount of the Quality Systems & Compliance Department had fallen from 31 to 25 and was due to fall by a further 2 to 23 personnel by the end of 2019. This was outlined to the Complainant in a letter dated 17 April 2019 which listed the high number of intensive tasks to be completed by the Department during the year and explained that the achievement of those tasks required two Training Specialists to be dedicated to the programme on a full time basis. This meant that business needs would require the Complainant to return to a 39 hour week. Ms. B also outlined that the letter of 21 December 2017, which provided for the Complainant’s reduced hours, noted that any amendments to her terms and conditions applied only “until such time as [she] revert[ed] to a 39 hour week”. She also noted that the letter of 21 December 2017 specified that the arrangement was “subject to review” and that it also referred to the Flexible Working Policy which in turn provided that “should the business need arise an employee who has been granted a flexible work arrangement can at any stage be asked to return to normal working hours, with adequate notice given”. As such, Ms. B upheld the requirement for the Complainant to return to a 39 hour working week. However, she noted that she was willing to facilitate the Complainant in availing of one day per week of parental leave, reducing her working week from 39 hours to 31 hours.

The Respondent submits that the Complainant appealed the outcome of her grievance by letter dated 9 May 2019 (Stage 3). The appeal was heard by the Respondent’s Head of Quality (Ms. D) who was satisfied that the Complainant’s contract of employment along with the letter of 21 December 2017, clearly outlined the basis of her reduced working hours arrangement and that this, along with the business needs of the organisation, led her to uphold the decision that the Complainant should return to a 39 hour week with effect from 4 June 2019. The conclusions of the appeal brought to an end the Respondent’s procedure for dealing with an employee’s concerns. The Complainant, as she was fully entitled to, availed of all 3 stages. Her concerns were carefully considered at each of the three stages. Three individuals were tasked by the Respondent to consider her concerns at each stage of the process, and all arrived at the same conclusion.

On 31 May 2019, the Complainant commenced a period of certified sick leave. She was paid for the first day of such leave, in accordance with the Respondent’s discretionary sick pay scheme. However, in order to manage absenteeism, the Respondent operated a system whereby absences of over 4 working weeks in a 6 month period would not be covered by discretionary sick pay. Exceptions are made however in circumstances such as long-term illnesses and pregnancy related illness. In accordance with that policy, the Respondent wrote to the Complainant on 6 June 2019 to inform her that she had exceeded her sick pay entitlement for the relevant 6 month period and therefore would not be paid for any further sick leave until the arrangement was reviewed in September 2019.

The Respondent disputes the Complainant’s contention that it refused to set up an appointment for her with the Company’s Occupational Health Physician. The Respondent submits that the Company’s Occupational Health Nurse did set up an appointment for the Complainant with the Respondent’s doctor. However, the Complainant informed her Team Leader, by phone that she did not wish to attend the appointment as her illness was of a personal nature and she wished to deal with her own doctor. On 2 August 2019, the Complainant resigned from her employment of her own volition.

Submissions

The Respondent submits that the essence of the Complainant’s claim is that the letter of 21 December 2017 amounts to a contractual amendment to her working hours such that the Respondent was prohibited from increasing her working week from 23 hours to 39 hours. If the Complainant is correct, then her claim is one for breach of contract and the WRC does not have jurisdiction to make any finding or grant any relief in that respect in circumstances where the complaint before it is made under the Employment Equality Acts.

Direct Discrimination

The Respondent disputes the claim of direct discrimination on the grounds of gender, family status and/or disability. The Respondent submits that the Complainant had a flexible working arrangement providing for reduced hours which it sought to adjust based on the business needs of the organisation for increased training to remedy what many employees across the site considered to be an inadequate training structure. This adjustment affected all individuals in the Complainant’s Department with reduced hours arrangements regardless of their gender or family status. The Complainant was not, therefore, treated less favourably than someone who was not covered by the relevant protected grounds was or would have been treated. The Respondent further submits that the Complainant was the only individual on site whose flexible working arrangement allowed her to work a 23 hour working week, and therefore cannot point to any comparator of a different gender or family status - hypothetical or otherwise – who received a more favourable working arrangement than that afforded to her.

The Respondent submits that in altering the Complainant’s working hours, it at all times dealt with the Complainant in accordance with its Flexible Work Policy which provides for consistency in treatment for all employees regardless of their gender or family status. The Respondent notes that the Complainant claims that a move to a 39 hour week would impact her domestic arrangements on the grounds of her family status. However, the Respondent contends that this does not amount to direct discrimination on the grounds of family status and the Complainant was not singled out for less favourable treatment on the basis of this characteristic. Instead, the Respondent sought to alter a temporary arrangement which had been introduced to assist the Complainant in balancing her family responsibilities, insofar as this temporary arrangement was consistent with the Respondent’s business needs.

Indirect Discrimination

The Respondent disputes the claim of indirect discrimination on the grounds of gender and/or family status in circumstances where the Complainant had been facilitated in availing of a working arrangement which was more favourable to her on the basis of her family status and which was only removed in circumstances where this was essential for the Respondent’s business needs.

The Respondent submits that it was necessary to require the Complainant to revert back to her full-time hours as a result of the overhaul in the Training Department and the consequent business needs of the organisation. A similar exercise was carried out for other individuals working reduced hours within the Complainant’s department which again was necessitated by staff shortages. Therefore, the removal of the Complainant’s flexible arrangement was necessary to meet a real and immediate need of the Respondent. The Respondent submits that in circumstances where the Complainant was one of only two Training Specialists in the Department and both specialists were required to dedicate themselves full-time to achieving the revised training targets for 2019, this measure was appropriate to achieve that need. Since the resignation of the Complainant, the Respondent now has two full time Training Specialists with a third Training Specialist being added in April 2020. In addition, the appointment of two full time Operational Technical Trainers has been approved.

The Respondent further submits, that contrary to the Complainant’s assertion, it did in fact consider alternative means by which the same result could be achieved and, as such, it offered the Complainant the opportunity to avail of parental leave in the form of one day off per week. This would have brought her from a working week of 23 hours (3 days) to a working week of 31 hours (4 days). However, this was not acceptable to the Complainant. The Respondent also sought to provide the Complainant with as much notice as possible (over two and a half months) of the ending of her flexible arrangement, so as to allow her to make any necessary arrangements in advance of her return to a 39 hour week. The Respondent submits that the measure was proportionate and appropriate in order to achieve the objective of making immediate changes to its training structure in order to ensure regulatory compliance was maintained.

The Respondent submits that in previous cases concerning flexible working arrangements, both the Labour Court and the Equality Tribunal have consistently held that the main factor in deciding whether the failure to provide flexible work arrangements amounts to indirect discrimination is to decide whether the employer acted reasonably and had a proper policy in place. Although the majority of the case-law relates to the provision of flexible working arrangements in the first instance, it is submitted that the principles derived from those cases can equally apply in circumstances where the removal of such arrangements is necessary. The Respondent referred to the following cases in support of its position in response to the claim of indirect discrimination, namely: Burke v National University of Ireland Galway [2001] E.L.R. 181, Bank of Ireland v Morgan EDA096, Tesco Ireland Limited, T/A Quinnsworth v Walsh DEE062 and Tesco Ireland v Swift EDA0514.

Discriminatory Dismissal

The Respondent submits that it cannot be considered to have behaved so unreasonably as to have left the Complainant with little choice other than to resign her employment. The Respondent also refutes the Complainant’s assertion that the letter of 21 December 2017 amounted to an irrevocable change to her working hours which amounted to a contractual term of her employment.

The Respondent disputes the clam of discriminatory constructive dismissal. The Respondent submits that it dealt reasonably with the Complainant at all times by (i) providing her with notice in relation to the amendments to her working hours (ii) by facilitating her in discussing her concerns and dealing with these in a reasonable manner in accordance with its Dealing with Concerns Policy and (iii) by offering the Complainant the ability to avail of parental leave in the form of one day off per week. It was submitted that although the Complainant did not agree with the Respondent’s position that her contractual arrangements had not been permanently amended such that she was entitled to work reduced working hours on a permanent basis, it adopted this position reasonably on the basis of the wording of the letter of 21 December 2017. It further dealt with matters reasonably in adjusting the Complainant’s working arrangements in accordance with the Flexible Work Policy and in reviewing her concerns and providing reasoned written responses to these in accordance with the Dealing with Concerns Policy.

Victimisation

The Respondent disputes the claim of victimisation contrary to Section 74(2) of the Acts and submits that it cannot be said to have victimised the Complainant for making a claim of discrimination in circumstances where her grievances did not make any reference to discrimination and instead alleged that the Respondent was acting in breach of her contractual entitlement to a 23 hour week.

The Respondent relied upon the following cases in support of its position, namely: Minaguchi -v- Wineport Lakeshore Restaurant DEC-E2002-020, A Worker (Mr. O) -v- An Employer (No. 2) [2005] ELR 132, Allen -v- Independent Newspapers ELR 84 and O’Brien -v- Persian Properties Limited [2012] ELR 211.

The Respondent adduced oral evidence from Ms. A (Team Leader), Ms. B (Quality Manager) and Ms. C (HR Business Partner) at the oral hearing.

Jurisdictional Issue

The first issue that I must decide relates to the jurisdictional issue raised by the Respondent as to whether the Complainant has impleaded the incorrect entity as the Respondent in these proceedings.

The Respondent submits that the Complainant has referred the instant complaint against ABC Limited and contends that the correct identity of her employer was XYZ Limited. It was submitted that the Complainant has therefore pursued the incorrect Respondent and is now statute barred from amending or adding this entity as a party to the proceedings.

The Complainant does not dispute that she was employed by XYZ Limited when she initially commenced employment in 2004. However, the Complainant contends that her employment transferred to ABC Limited in 2011 by way of a transfer of undertakings and that all employees were informed by management at that juncture that they were no longer to refer to themselves as employees of XYZ, but rather ABC.

Having regard to the evidence adduced, it is clear that XYZ Limited was acquired by ABC Limited following a merger in or around 2011 and that the business began to refer to itself as ABC thereafter. I am satisfied that the Complainant’s employment did not transfer from XYZ Limited to ABC Limited at that juncture by way of a transfer of undertakings within the meaning of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003. The Respondent adduced compelling evidence, both oral and documentary (including the Complainant’s contract of employment and payslips) which clearly establishes that she was employed by XYZ Limited at all material times for the purposes of the instant complaint. In the circumstances, I find that the Complainant was employed by XYZ Limited and therefore, has impleaded the incorrect legal entity as the Respondent in the instant proceedings.

The question then turns to the issue as to whether it is legally permissible for me to accede to the Complainant’s application to substitute the correct Respondent (i.e. XYZ Limited) in this case.

It is clear that there is no statutory mechanism which the Complainant can invoke in the circumstances of the instant case in order to facilitate the amendment or substitution of the Respondent. However, it is well established from several recent authorities that statutory tribunals such as the WRC should operate with a minimum degree of informality and should not apply procedures that are more rigid or stringent than the ordinary courts. This proposition is subject, of course, to the overriding principle that statutory tribunals are obliged to ensure adherence to fair procedures in the discharge of their functions. In this regard, I note that the seminal case on the circumstances in which proceedings before a statutory tribunal can be amended is County Louth VEC -v- Equality Tribunal [2009] IEHC 370 where the High Court held that: “If it is permissible in court proceedings to amend pleadings where the justice of the case requires it, then, a fortiori, it should also be permissible to amend a claim as set out in a form such as an originating document before a statutory tribunal, so long as the general nature of the complaint remains the same.”

This view was reinforced by the Labour Court in Travelodge Management Limited -v- Sylwia WachEDA1511 where it was stated that: “It could cogently be argued that in keeping with the decision in County Louth VEC v Equality Tribunal, and by application of the principle of equivalence, the Court should not adopt a more stringent stance in relation to the substitution of parties that is available in the High Court pursuant to that rule.”

It was also stated by the Labour Court in the Wach case that whilst there are divergent views on the circumstances in which the substitution or addition of a party in proceedings ”the preponderance of authority is that the Superior Courts will not add or substitute a party to proceedings where the limitation period in the action has expired as against that party”. In this case the Labour Court held that it was not permissible to add or substitute a party to proceedings where the statutory limitation period has expired as against that party.

In considering the case law in the context of the instant case, I note that there was a dispute between the parties on the issue as to whether or not the Complainant’s application to substitute the correct name of the Respondent is statute barred in accordance with the limitation periods provided for in Section 77(5) of the Acts. Section 77(5) of the Acts provides as follows:

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

(b) On application by a complainant the Director or Circuit Court, as the case may be, may, for reasonable case direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substitutes a reference to such period not exceeding 12 months as is specified in the direction”.

The effect of these provisions is that the Complainant can only seek redress in respect of occurrences during the six-month period prior to the date on which the claim was received by the Director General. This period can be extended to twelve months in accordance with the provisions of Section 77(5)(b) in circumstances where the Complainant can demonstrate that there was “reasonable cause” which prevented him/her from referring the complaint within the prescribed time limits.

There was a dispute between the parties in relation to the date of the most recent occurrence of the alleged discrimination in the instant case. The Respondent contends, on the one hand, that the Complainant indicated in her Complaint Referral Form that the date of the most recent occurrence was 23 July, 2019, and therefore, the application to substitute the correct Respondent which was made at the oral hearing on 20 February, 2020, falls outside of the six month limitation period. The Complainant does not dispute this fact. However, she subsequently sought to clarify the situation in relation to the relevant date and contends that the discrimination extended over a period of time from the initial discriminatory act on 12 March 2019 (i.e. when she was first notified about the Respondent’s decision to remove her flexible working arrangement) until her ultimate dismissal on 23 August 2019.

In considering this matter, I note that there are a number of elements to the Complainant’s claim under the Acts, namely discriminatory treatment, discriminatory constructive dismissal and victimisation. Having carefully considered the evidence and submissions of both parties on this matter, I am satisfied that the alleged discriminatory act of removing her flexible working arrangement is inextricably linked to all of the aformentioned claims within the instant complaint. I am further satisfied that the earliest date of the alleged discrimination was 12 March, 2019 and that the alleged discrimination was ongoing until the date her employment was terminated on 23 August, 2019 i.e. the date the Complainant claims she was discriminatorily dismissed from her employment. In the circumstances, I find that the date of the most recent occurrence of the alleged discrimination was 23 August, 2019. Accordingly, it is clear that the Complainant’s application to substitute the correct name of Respondent has been made within the six-month time limit provided for in Section 77(5)(a) of the Acts, and therefore, is not statute barred.

I also note that there are a number of other factors which the courts will take into consideration (other than the issue of whether the claim is statute barred) when deciding whether to allow the addition or substitution of a party in proceedings. These other factors include consideration as to whether the correct Respondent was aware or on notice of the proceedings in question, if they had an opportunity to be heard in relation to the matter and any prejudice which may arise if the substitution was allowed. In this regard, I note that the High Court held in O'Higgins -v- University College Dublin & Anor [2013 21 MCA] that: “Even if the wrong party was, in fact, so named, no prejudice whatever was caused by reason of that error (if, indeed, error it be) .… In these circumstances, for this Court to hold that the appeal was rendered void by reason of such a technical error would amount to a grossly disproportionate response and deprive the appellant of the substance of her constitutional right of access to the courts”.

In the instant case, the Complainant’s complaint was referred to the WRC on 11 October, 2019 and I am satisfied that the correct Respondent was made fully aware of these proceedings at an early stage following the referral. However, I note that there was no issue raised by this entity regarding the naming of the incorrect Respondent to either the Complainant or the WRC until its written submissions were provided on 18 February, 2020. I also note that the correct employer appeared at the hearing with its legal representatives and witnesses on 20 February, 2020 and was fully prepared to defend the complaint which had been initiated by the Complainant. In the circumstances, I am satisfied that the Complainant’s employer was not prejudiced in any way in terms of its ability to defend the instant proceedings as a result of the misstatement of the name of the Respondent on the initiating form for this complaint.

Having regard to the foregoing, I am satisfied that the correct employer has been pursued in relation to this complaint and that the misstatement by the Complainant of her employer’s name on the Complaint Referral Form constitutes no more than a technical error. I take the view that if I were to decline jurisdiction in the pertaining circumstances that it would clearly amount to a “grossly disproportionate response” as envisaged by the High Court in the O’Higgins case. In the circumstances, I find that the Respondent’s name can be amended to reflect its correct legal title.

Substantive Issue

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.

Accordingly, the issues for decision in this case are:

      (i)            Whether or not the Complainant was subjected to direct discrimination on the grounds of gender, family status and disability contrary to Section 8(6) of the Acts in relation to her conditions of employment;

    (ii)            Whether or not the Complainant was subjected to indirect discrimination on the grounds of gender and family status contrary to Sections 22 and 31 of the Acts;

   (iii)            Whether or not the Complainant was constructively discriminatorily dismissed from her employment; and

   (iv)            Whether or not the Complainant was subjected to victimisation contrary to Section 74(2) of the Acts.

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

Discrimination on Disability Ground

The first issue that I will consider relates to the claim of discrimination on the grounds of disability. Section 6(1) of the Employment Equality Acts provides that discrimination shall be taken to occur where “a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) ...”. Section 6(2)(g) of the Acts defines the discriminatory ground of disability as follows – “as between any 2 persons, ...   that one is a person with a disability and the other either is not or is a person with a different disability".

The definition of disability in Section 2(1) of the Acts is as follows:

“disability” means—

(a) the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body,

(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,

(c) the malfunction, malformation or disfigurement of a part of a person’s body,

(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or

(e) a condition, illness or disease which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour, and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person;”

It is necessary to determine at the outset whether the condition from which the Complainant suffered at the material time was a disability within the meaning of Section 2(1) of the Acts. It was not in dispute between the parties that the Complainant had been diagnosed by her GP as suffering from stress at the material time in question relevant to this complaint.

The Employment Equality Act transposes EU Directive 2000/78/EC. While the Directive does not define disability, the European Union has approved the definition of disability set out in the UN Convention on the Rights of Persons with Disabilities. This provides that disability is an evolving concept and arises “from the interaction between persons with impairments and attitudinal and environmental barriers” that hinders their full and effective participation in society on an equal basis with others. Article 1 of the Convention sets out that persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments. The Court of Justice of the European Union has held that a disability must be long-term (see the HK Danmark cases (C-335 and 337/11).

The definition of a disability has been interpreted in a broad manner and I note that there is established precedent from the Labour Court that anxiety and stress can fall within the definition of disability under the Acts under certain circumstances. In considering the definition of disability in the Employment Equality Acts, I note that the Labour Court held in the case of A Government Department -v- A Worker EDA094 that: “The Court must take the definition of disability as it finds it. Further, as the Act is a remedial social statute it ought to be construed as widely and as liberally as possible consistent with fairness (see Bank of Ireland v Purcell [1989] IR 327). Nevertheless, no statute can be construed so as to produce an absurd result or one that is repugnant to common sense. That common law rule of construction has now been given statutory effect by s.5(1) of the Interpretation Act 2005. It would appear to the Court that if the statute were to be construed so as to blur the distinction between emotional upset, unhappiness or the ordinary human reaction to stressful situations or the vicissitudes of life on the one hand, and recognised psychiatric illness on the other, it could be fairly described as an absurdity.”

In relation to the definition of disability the Labour Court noted that “is expressed in terms of the manifestations or symptoms produced by a particular condition, illness or disease rather than the taxonomy or label which is to be ascribed thereto. Further, the definition does not refer to the extent to which the manifestations or symptoms must be present. However, a de minimis rule must apply and effects or symptoms, which are present to an insignificant degree, would have to be disregarded. Moreover, the classification of a condition, illness or disease as a disability is not limited by its temporal affect on the sufferer. This is clear from the definition which provides that it: - “shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person””.

The Labour Court also held in the case of Health Service Executive North West -v- Patricia Cullen Killoran EDA1830 that: “While disability is broadly defined by the Acts each of the examples given in the Acts relate to malfunctions or abnormalities of the mind or the body. Stress caused by illness of a relative or loved-one is not an abnormality or malfunction. Rather, it is a normal human condition, not classified as abnormality or malfunction, and therefore not a disability within the statutory meaning ascribed to that term.”

In the instant case, the Complainant adduced evidence that she suffered from “mental health issues” namely stress arising from her work situation and she contends that her medical condition amounted to a disability within the meaning of Section 2(1). I note that the Complainant did not adduce any evidence to suggest that she had a previous history of mental health or stress related illnesses during her period of employment with the Respondent prior to early June, 2019 when she went absent from work on certified sick leave. The only medical evidence which the Complainant adduced in evidence in support of her claim that she had a disability was a certificate from her GP which indicated that she was unable to attend work 1 July, 2019 to 7 August, 2019 due to stress.

The Complainant contends that she offered to attend the Company’s Occupational Health Physician for a medical assessment, but the Respondent was reluctant to pursue this course of action and she formed the view that management did not believe she was suffering from stress. I do not accept the Complainant’s position on this matter, and I am satisfied that the Respondent did endeavour to make enquiries in relation to her wellbeing after she went absent on sick leave and that it did, in fact, make arrangements for the her to attend the Company doctor in late July, 2019. However, I find that the Complainant explicitly indicated that she did not wish to discuss the nature of her medical condition with her Team Leader and that she chose not to attend this appointment of her own volition as she had taken the decision at that juncture to resign her employment. I am satisfied that there was not an inordinate delay in the length of time which it took the Respondent to make arrangements to have the Complainant assessed by its Occupational Health Physician especially in circumstances where the Respondent only became aware of her medical condition less than two months earlier.

In applying the reasoning of the Labour Court in the Killoran case, I am satisfied that I have not been presented with any medical evidence from which I could reasonably conclude that the stress which the Complainant was experiencing at the material time in question occurred as a result of an abnormality or malfunction, being either temporary or permanent in nature. Having regard to the totality of the evidence adduced, I find that the Complainant’s medical condition does not constitute a disability within the meaning of Section 2(1) of the Acts. Accordingly, I find that the Complainant was not subjected to discrimination by the Respondent on the grounds of disability contrary to the Acts.

Direct Discrimination on the grounds of Gender and Family Status

The next element of the complaint that I must consider relates to the Complainant’s claim that she was subjected to discriminatory treatment on the grounds of gender and family status in relation to her conditions of employment.

Section 6(2)(a) of the Acts defines the discriminatory ground of gender as follows – “as between any 2 persons, ... that one is a woman and the other is a man”and Section 6(2)(c) of the Acts defines the discriminatory ground of family status as follows – “as between any 2 persons, ... that one has family status and the other does not".

“Family status” is defined in Section 2(1) of the Acts as follows:

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

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

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

The Complainant claims that she has been subjected to discrimination on the grounds of her gender and family status in relation to the removal of her flexible working arrangement and the consequent requirement that she return to a 39 hour working week with effect from June, 2019. The Complainant contends that she was a mother of three young children and was not in a position to return to full-time employment due to her family and child care commitments.

In considering this issue, it is important to outline the nature of the working arrangements that the Complainant had been undertaking in the years leading up to the termination of her employment on 23 August, 2019. In this regard, I note that the Complainant commenced employment with the Respondent in 2004 and was contracted to work on a full-time basis (i.e. 39 hours per week over five days). The Complainant continued to work on this basis until 2015 when she availed of the Respondent’s Flexible Working Policy following her first period of maternity leave which resulted in her weekly hours being reduced from 39 hours to 31 hours giving her every Wednesday off work. It was not in dispute that the Complainant was further facilitated by the Respondent in working her 31 hours over three days following her return to work after her second period of maternity leave in July, 2016.

It was common case that the Complainant took her third and final period of maternity leave in February, 2017 and that she indicated to the Respondent prior to her return to work in October, 2017 that she was contemplating resigning her position unless the Company would facilitate her with a more flexible working arrangement to accommodate her familial obligations. It was not in dispute that the Respondent agreed to update the Complainant’s flexible working arrangements at that juncture which resulted in her working week being reduced to 23 hours over three days. The Complainant commenced working under the 23 hour week arrangement and continued on this basis until she went absent from work on certified sick leave in early June, 2019 prior to her resignation.

There was a dispute between the parties as to whether the flexible working arrangement which had been put in place in October, 2017 which facilitated the Complainant to work a 23 hour week over three days constituted a permanent amendment to her contract of employment or a temporary arrangement which had been put in place under the Respondent’s Flexible Working Policy. Having carefully considered the extensive evidence adduced on this matter, I find that the flexible working arrangement which had been put in place at that juncture was effected in accordance with the Respondent’s Flexible Working Policy. I am satisfied that this arrangement was not envisaged as a permanent amendment to the Complainant’s contractual terms and that its continuation was contingent of the business needs of the organisation. In this regard, I note that the Respondent’s Flexible Working Policy clearly provides that an employee who has been granted a flexible working arrangement may at any stage be requested to return to normal working hours subject to the business needs of the organisation.

The question then turns to the issue as to whether the alleged discrimination by the Complainant should be considered in the context of direct or indirect discrimination. In considering this issue I have taken cognisance of the case of Tesco Ireland –v- Swift EDA0514 where the Labour Court held as follows: “The European Court of Justice in the case of Julia Schnorbus v Land-Hessen C-79/99 has stated that direct discrimination can only arise where the difference in treatment complained of is based on criterion which is explicitly that of sex or is necessarily linked to a characteristic indissociable from that of sex. As this Court has stated in the case of Tesco Ireland and A Worker DEE014, while the responsibility for child care may in practice fall to a disproportionate degree on women, it cannot be said to be a characteristic indissociable from a woman's gender. The Court cannot therefore accept the complainant's complaint is one of direct discrimination

I am satisfied that the reasoning in Tesco Ireland is equally applicable to both the gender and family status grounds which are the grounds being relied upon by the Complainant in the circumstances of the present case. In essence, the central plank of the Complainant’s complaint is that the removal of her flexible working arrangement and the consequent requirement to return to work on a full-time five day per week basis amounts to discrimination on the grounds of her gender and family status. However, in applying this reasoning in the Tesco Ireland case to the circumstances of the present case, I am satisfied that the Complainant’s claim cannot amount to direct discrimination on the grounds of gender and family status.

In coming to this conclusion, I have taken cognisance of the Respondent’s evidence that it was necessary to review and adjust the flexible working arrangements of all individuals within the Complainant’s Department arising from the business needs of the organisation regardless of their gender or family status. I am satisfied that the Respondent’s decision to remove the Complainant’s existing flexible working arrangement at the material time in question was not based on a criterion or policy which was explicitly linked to her gender or family status. Accordingly, I find that the Complainant has failed to establish a prima facie case of direct discrimination on the grounds of gender and family status. In the circumstances, I am satisfied that the alleged discrimination in the context of the present complaint is one which falls to be considered under the provisions relating to indirect discrimination.

Indirect Discrimination

Indirect discrimination in relation to the gender and family status grounds is defined in Sections 22 and 31 of the Acts as occurring in circumstances where an apparently neutral provision puts persons at a particular disadvantage in respect of any matter other than remuneration compared with other employees of their employer, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary. The definition of ‘provision’inSection 2 is broad: “a term in a contract or a requirement, criterion, practice, regime, policy or condition relating to employment.” The above definition of indirect discrimination reflects the definition set out in Article 2 of the EU Framework Directive 2000/78/EC. Indirect discrimination occurs: “unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.”

The Supreme Court in the case of Nathan v Bailey Gibson & Others [1996] ELR 7 set out the tests to be applied in considering cases of indirect discrimination. This was a case under the Employment Equality Act, 1977 concerning indirect discrimination on the grounds of sex and marital status. The Supreme Court stated the following principle which were followed by the High Court in the case of Conlon v University of Limerick [1999] ELR 10 where it was held that: “In such a case the worker is not required, in the first instance, to prove a causal connection between the practice complained of and the sex of the complainant. It is sufficient for him or her to show that the practice complained of bears significantly more heavily on members of the complainant’s sex than on members of the other sex. At that stage the complainant has established a prima facie case of discrimination and the onus of proof shifts to the employer to show that the practice complained of is based on objectively verifiable factors which have no relation to the plaintiff’s sex.”

I have also taken cognisance of the Labour Court decision in Inoue v NBK Designs Ltd EED0212 where the Labour Court held that: “On the facts disclosed it is clear that the complainant was unable to work full-time, not because she is a woman per se, but because she is the mother of a school going child and the primary carer of that child. It is still the reality in modern society that mothers are more likely to fulfil that role than are fathers. More relevant to the instant case is the fact that where parents are separated or single, it is the mother who is much more likely to have custody of children. Consequently, as a general proposition, women who have children and are single, separated or divorced find it more difficult to work full-time than fathers who are single, separated or divorced or men who are not parents.”

As was pointed out by the Labour Court in Inoue, I am satisfied that it is still the reality that mothers are more likely to fulfil the primary parenting role of young children than are fathers. In the circumstances, I find that it is reasonable to infer as a general proposition that women who have children find it more difficult to work full-time than fathers who have children and/or men without children. Having regard to the totality of the evidence adduced, I find that the provision introduced by the Respondent i.e. the requirement to remove the Complainant’s flexible working arrangement which would have required her to return to work on a full-time basis put her at a disadvantage on the grounds of her gender and family status.

However, by application of the provisions of Section 31(5) of the Acts, which provides that a provision amounts to indirect discrimination on grounds of family status and also on grounds of gender, a finding of discrimination can only be made on grounds of gender. Accordingly, I find that the Complainant has established a prima facie case of indirect discrimination on the grounds of gender.

Under Sections 21(1) and 31(1) of the Acts, it is a matter for the Respondent to objectively justify the impugned requirement. It therefore falls on the Respondent to demonstrate that the requirement imposed on the Complainant to return to full-time employment is objectively justified. In NBK Designs Ltd v Inoue, the Labour Court held: “The wording of Section 22(1)(c) must be interpreted as contemplating the three-tiered test for objective justification set out by the ECJ in Bilka – Kaufhaus. This test requires that the Court be satisfied that the impugned measures: -

(a) correspond to a real need on the part of the undertaking,

(b) are appropriate with a view to achieving the objective pursued, and

(c) are necessary to that end.”

In applying the first stage of the test to the facts of the instant case, I note that the Respondent operates in a highly regulated industry in which it is of the utmost importance to have proper and effective levels of training accessible to its employees. I accept the Respondent’s evidence that there was an urgent requirement at the material time in question to put measures in place to overhaul the Training Department (i.e. the Complainant’s Department) in order to address a deficiency in training capacity and output within the overall organisation which had been identified following a staff survey. The Respondent adduced compelling evidence that the requirement to ramp up its training output occurred against the backdrop where there was very limited capacity in terms of the numbers of personnel within the Training Department with the Complainant being one of only two Training Specialists who were being tasked with responsibility for delivering the project. It is clear Complainant had significant experience in this role and that the Respondent took the view that it was necessary for her to increase her weekly working hours in order to achieve the essential changes to its training structures. In the circumstances, I find that the requirement to withdraw the Complainant’s flexible working arrangement was necessary to meet a real need within the Respondent’s organisation at the material time in question.

In considering the second stage of the test, I note that the Complainant had been facilitated with a flexible working arrangement by the Respondent since 2015 after she had returned to work following her first period of maternity leave. I am satisfied from the evidence adduced that the Complainant was a highly valued and competent employee and that the Respondent had been anxious to retain her services by accommodating her flexible working arrangements subject to the requirements of the business. I note that the Labour Court held in the case of Catherine Morgan v Bank of Ireland Group EDA096 that: “It would be manifestly unreasonable to hold that an employer must provide a woman with a facility to job-share in every case in which such a facility is requested and such a result could not have been intended. It is self-evident that such facilities can only be made available within the exigencies of the business.”. It is clear from the evidence adduced in the instant case that the requirements and operational needs of the Respondent’s Training Department had changed following the review of staff training needs and that it was necessary to put measures in place to address this situation. I am satisfied that the requirement to request the Complainant and other staff members to adjust their flexible working arrangements was a reasonable and proportionate response to achieve the additional capacity and output within the Department. Accordingly, I find that the Respondent has satisfied the second stage of the test.

In relation to the third stage of the test, it is necessary for the Respondent to establish that the requirement was necessary to achieve the need/objective. It was held by Labour Court in Inouethat: “The requirement here is for the employer to demonstrate that there were no alternative means, having a less discriminatory effect by which the objective in view could have been achieved.” In applying this reasoning to the instant case, I am satisfied that the Respondent did consider alternative means by which the objective in view could be achieved and that the Complainant was offered the option of taking parental leave for one day per week following the removal of her existing flexible working arrangement. This alternative would have resulted in the Complainant being required to work a 31 hour week over four days rather than the 23 hours over three days which she had been working since October, 2017 under the flexible working arrangement. Therefore, the offer to the Complainant that she could avail of parental leave would have resulted in an adjustment of her flexible working arrangement rather that the termination of same in its entirety. I also note that the Respondent provided the Complainant with a period of almost three months’ notice prior the proposed removal of her flexible working arrangement.

I have also taken into consideration the Respondent’s evidence that it wasn’t possible in the circumstances to offer the Complainant other alternatives such as job-sharing and that the recruitment of additional staff or redeployment of other staff members to perform the Complainant’s role, either in full or in part, was not a feasible option. In this regard, the Respondent adduced compelling evidence that there had been a significant reduction in the overall staff numbers within the Quality Systems & Compliance Department (of which the Training Department was a constituent part) around the material period of time in question which resulted in a reduction in staff numbers from 31 to 25 with the requirement to further reduce numbers to 23 by end of 2019.

Having regard to the foregoing, I find that the Respondent has established that the requirement to adjust the Complainant’s flexible working arrangement was necessary in the circumstances to achieve the requirement of implementing the urgent changes to its training structures. In the circumstances, I find that the Respondent is entitled to rely upon the defence of objective justification within the meaning of Section 22(1)(b) of the Acts. Accordingly, I find that the Complainant was not subjected to indirect discrimination on the grounds of gender and family status contrary to Sections 22 and 31 of the Acts.

Discriminatory Dismissal

The next element of the Complainant’s complaint which I must consider relates to the claim that she was discriminatorily constructively dismissed from his employment.

Section 2(1) of the Acts defines “dismissal” as including:

"the termination of a contract of employment by an employee (whether prior notice of termination was or was not given to the employer) in circumstances which, because of the conduct of the employer, the employee was or would have been entitled to terminate the contract, without giving such notice, or it was or would have been reasonable for the employee to do so .... ".

Inthe case of An Employer -v- A Worker (Mr. O)(No. 2) EED410the Labour Court comprehensively addressed the issue of constructive dismissal under employment equality legislation. It noted that the definition was practically the same as the definition of "dismissal" contained in the Unfair Dismissals Acts and held that the tests for constructive dismissal developed under that legislation i.e. the "contract" test and the "reasonableness" test were applicable tests under the Employment Equality legislation. In this case the Labour Court, when referring to the “reasonableness test”, held that: “There is, however, the additional reasonableness test which may be relied upon as either an alternative to the contract test or in combination with that test. This test asks whether the employer conducts him or her affairs in relation to the employee, so unreasonably that the employee cannot fairly be expected to put up with it any longer. Thus, an employer’s conduct may not amount to a breach of contract but could, none the less, be regarded as so unreasonable as to justify the employee in leaving. Further, the employer may commit a breach of contract which may not be of such a nature as to constitute repudiation but is so unreasonable as to justify the employee in resigning there and then.”

The Labour Court further held in this case, when referring to the “contract test”, that: “It is not suggested that the respondent breached any express term in the complainant’s contract of employment. It is, however, settled law that every contract of employment contains an implied term that the parties will maintain mutual trust and confidence in their working relations with each other.”

In both types of situation, the conduct of the employer must be of sufficient gravity so as to entitle the employee to terminate the contract without notice or render it reasonable for him or her to do so. Therefore, the question which I must decide in the present case is whether, because of the conduct of the Respondent, the Complainant was entitled to terminate her contract of employment. The Complainant is relying on both the “reasonableness” and “contract” tests to ground her claim.

In relation to the “reasonableness”testthe Complainant contends that she had been treated in a discriminatory manner by the Respondent in relation to the decision to remove her flexible working arrangement. The Complainant contends that she brought a number of matters to the attention of the Respondent and had reasonably lost faith in the manner in which same had been dealt with. The Complainant contends that the Respondent failed to understand the importance of the permanent amendment made to her contract in October, 2017 by flippantly disregarding the effect that the requirement to return to full-time employment would have on her and her family. The Complainant submits that this behaviour by the Respondent was so unreasonable as to leave her with little choice other than to resign her employment.

Having regard to the totality of the evidence adduced, I am satisfied that the Respondent’s decision to adjust the Complainant’s flexible working arrangement did not amount to discriminatory treatment, either direct or indirect, on the grounds of her family status. I am satisfied that the requirement for same arose as a result of a genuine business need within the organisation and that the Respondent was acting fully in accordance with its Flexible Working Policy by adjusting this arrangement in the circumstances. I find that the Respondent acted in a reasonable and proportionate manner in relation to this matter and notwithstanding the urgent requirement for the Complainant to resume full-time hours, it sought to facilitate her familial obligations by offering to allow her to take a day per week on parental leave. In the circumstances, I cannot accept the Complainant’s contention that the Respondent was oblivious to her family circumstances and that the implementation of the changes to her flexible working arrangement was intended as a means of forcing her to leave her position. On the contrary, based on the totality of the evidence adduced, I am satisfied that the Complainant was a highly valued employee and that the Respondent had put significant measures in place by way of flexible working arrangements during her period of employment to try and accommodate her familial obligations.

I am satisfied that the Complainant was afforded the opportunity to have her concerns and grievance in relation to this matter fully addressed by way of the internal grievance procedures. I have examined the manner in which the grievance procedure was conducted, and I am satisfied that it was fully compliant with fair procedures throughout all stages of the process. I cannot accept that the Respondent acted in a manner in respect of this matter such that the Complainant could have reasonably lost faith or trust in the employment relationship. Having regard to the foregoing, I find that the Complainant has failed to satisfy the burden of proof that she acted reasonably in the circumstances and that she had no option to resign from position because of the conduct of the Respondent.

I have also considered the Complainant’s claim in the context of the “contract” test and I cannot accept that the proposed changes to her flexible working arrangement amounted to a repudiatory breach of her contract of employment. As I have already found above, I am satisfied that the flexible working arrangement which had been put in place with the Complainant in October, 2017 was effected in accordance with the Respondent’s Flexible Working Policy and did not amount to a permanent change to the terms of her contract of employment. In the circumstances, I find that there was no evidence to suggest that the Respondent was guilty of conduct which amounted to a significant breach going to the root of the contract of employment, or which demonstrated that the Respondent no longer intended to be bound by one or more of the essential terms of the contract.

Having regard to the two tests identified above, I find that the Complainant has failed to establish that the Respondent’s conduct was unreasonable or was such that she had no option but to resign her position or that it was such as to show that it no longer intended to be bound by one or more of the essential terms of the contract.

In the circumstances, I find that the Complainant resigned from her employment of her own volition and was not constructively dismissed within the meaning of Section 2 of the Acts. Accordingly, I find that her complaint of discriminatory constructive dismissal cannot succeed.

Victimisation

The final element of the Complainant’s complaint which I must consider relates to the claim that she was subjected to victimisation contrary to Section 74(2) of the Acts. Section 74(2) of the Acts defines victimisation as follows:

“victimisation” occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to-

(a)    a complaint of discrimination made by the employee to the employer,

(b)    any proceedings by the complainant,

….. ….. …..

(f)     an employee having opposed by lawful means an act that is unlawful under this Act…., or

(g)    an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.”

The Complainant has claimed that she was subjected to victimisation by the Respondent after she raised an internal grievance under the company’s internal procedures regarding the discriminatory manner in which she had been treated by the Respondent. The Complainant claims that the detriment she suffered as a result of having raised this grievance was the removal of her sick pay and the refusal to send her to the Company’s doctor for a medical assessment.

In the case of Tom Barrett -v- Department of Defence EDA1017 the Labour Court set out the three components which must be present for a claim of victimisation under Section 74(2) of the Acts to be made out. It stated that (i) the Complainant must have taken action of a type referred to at paragraphs (a)-(g) of Section 74(2) – what it terms a “protected act”, (ii) the Complainant must be subjected to adverse treatment by his/her employer and (iii) the adverse treatment must be in reaction to the protected act having been taken by the Complainant.   Therefore, I must decide in the first instance, whether or not the Complainant took action that could be regarded as a “protected act”.

In considering this issue, I note that it was not in dispute that the Complainant raised a grievance under the internal procedures in relation to the Respondent’s decision to remove her existing flexible working arrangement. It was common case that the Complainant was initially informed about this decision by her Team Leader on 12 March, 2019 and that she invoked and fully exhausted all stages of the internal grievance procedures thereafter in relation to this matter. I note that the internal grievance procedures concluded on 29 May, 2019 when the Complainant was informed following the Stage 3 appeal that the decision to remove her flexible working arrangement was being upheld. Having considered the extensive evidence (including relevant documentation) adduced by the parties in relation to the conduct of the internal grievance procedures, I am satisfied that the Complainant did not explicitly raise any issue during this process in relation to alleged discriminatory or unlawful treatment under the Acts. It is clear that the main thrust of the dispute between the parties which gave rise to the grievance related to the issue of whether or not the Complainant had a contractual entitlement to continue working on a 23 hour week arrangement and if the Respondent’s decision to terminate this arrangement amounted to a breach of these contractual entitlements.

I am satisfied that the first occasion on which the Complainant took any action which could reasonably be construed as having invoked a protected act within the meaning of Section 74(2) of the Acts occurred on 27 June, 2019 when she sent a letter to the Respondent alleging that the discontinuation of her sick pay amounted to less favourable treatment on the grounds of disability. Even if I were to accept that the Complainant’s letter on this date constituted a protected act within the meaning of Section 74(2) of the Acts, it is clear that the alleged detriment of discontinuing her sick pay pre-dated this act and therefore, it clearly could not amount to an act of victimisation contrary to the Acts. In the circumstances, I find that the Complainant did not take any action which could be construed as a protected act within the meaning of Section 74(2) of the Acts prior to the date upon which the alleged detriment actually occurred. Accordingly, I find that the Complainant has failed to establish a prima facie case of victimisation contrary to Section 74(2) of the Acts.

In accordance with section 79(6) of those Acts, I issue the following decision. I find that -

        (i)            the Complainant has failed to establish a prima facie case of direct discrimination on the grounds of gender, family status and/or disability in relation to her conditions of employment;

      (ii)            the Complainant was not subjected to indirect discrimination on the grounds of gender and/or family status contrary to Sections 22 and/or 31 of the Acts;

    (iii)            the Complainant was not discriminatorily constructively dismissed contrary to Section 8 of the Acts; and

    (iv)            the Complainant has failed to establish a prima facie case of victimisation contrary to Section 74(2) of the Acts.

Employment Equality Acts 1998 to 2015 – Direct Discrimination – Indirect Discrimination – Gender – Family Status – Disability - Sections 22 and 31 – Objective Justification - Conditions of Employment - Victimisation – Constructive Discriminatory Dismissal