Complainant

Respondent

Anonymised Parties

HR manager.

Aviation recruitment and staff support agency.

Representatives

Ken Stafford Management Consultancy Services

Matheson Solicitors. Ms Rosemary Mallon, B. L

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00029660-002

13/07/2019

This is a complaint of discrimination contrary to the gender and family status provisions of the Employment Equality Acts 1998 as amended.

The complainant commenced work with the respondent in June 2016. In April 2017 she was appointed to the position of Head of Human Resources, reporting to the MD.

On 29th July 2018 the complainant commenced her maternity leave. She took 8 weeks of approved additional maternity leave, and 4 weeks certified sick leave, and returned to work on 24th June 2019. The complainant resigned her position in September 2019.

The position to which the complainant was required to return was materially different from the post which she occupied immediately prior to her maternity leave.

Her salary is €68,624 per annum. The position carried an annual bonus of up to €8235 and a company car to the value of €10,000.

The last act of discrimination occurred on the 5 July 2019. She submitted her complaint to the WRC on 12/7/2019.

The respondent’s barrister argued that using dual avenues of redress for processing the same complaint – the job the complainant was offered upon her return from maternity leave-was ruled out in the Labour Court determination of Power v. Jahan Company t/a Irema Ireland Ltd EDA 1326. There, the Labour Court concluded that one cannot bring an identical case under the Employment Equality Acts to a claim previously brought under the Maternity Protection Act 1994. The Labour Court stated that the issues before it had been ventilated in proceedings before a Rights Commissioner and could not be pursued in other proceedings between the same parties as it was res judicata.

Therefore, the complainant could not use the same set of facts to pursue her complaint under both the Employment Equality Acts and the Maternity Protect Acts and must confine her complaint to one of these statutory routes.

The complainant’s representative stated that the complainant is entitled to hold her position open and advance two complaints at this point, but if obliged to choose would elect to have her complaint heard under the Employment Equality Act,1998.

The Labour court determination of Power v. Jahan Company t/a Irema Ireland Ltd EDA 1326, cited to me, acknowledges that the Employment Equality Acts do not contain a statutory prohibition on duplication of claims. In that case the complainant had already been awarded a sum for the complaint heard under the Maternity Protection Acts, based on the same set of facts, and now being recycled before the Labour Court to ground a complaint under the Employment Equality Acts.

The Court, however, went on to consider whether in the absence of the said statutory prohibition the doctrine of res judicata operates to prohibit a party from litigating the same issue twice. They concluded that in the absence of a statutory prohibition, common law estoppel can apply in proceedings before quasi-judicial tribunals. The Labour Court considered a number of authorities one of which was the statement of Hedigan J in Cunningham v Intel Ireland Ltd. (2013) IEHC 207

“All matters and issues arising from the same set of facts or circumstances must be litigated in the one set of proceedings”

The Labour Court concluded that the complainant was estopped from ventilating the complaint under the Employment Equality Acts as the complaint had already been adjudged and a remedy applied. The Court stated that the legal doctrine of transit in rem judicatem operatedto deny the complainant the opportunity to have her complaint heard under the Act of 1998 as the redress awarded in the previous award was intended to cover the totality of her complaint and she cannot use the present proceedings to obtain an additional or better remedy for what is undoubtedly the same wrong for which she has already been compensated. The Court stated, “the present proceedings were merged and extinguished by the Decision in her favour under the Maternity Protection Act 1994 and she is estopped from seeking to litigate that cause of action again.”

But the circumstances are distinguishable in the instant case. The absence of a previous hearing, decision or award under the Maternity Protection Acts casts doubt about the applicability of res judicata or transit in rem judicatem in the instant case. There is no existing award to be merged with a later award. Additionally, the complainant asks to have both complaints determined on the same set of facts and at one sitting unlike the facts which led to the Labour Court’s reasoning in Power.

The equality officer when faced with the argument that simultaneous dual avenues of redress were prohibited, stated in DEC-E2006-007

“Section101 of those Acts sets out specific circumstances restricting a complainant from following dual avenues of redress under, inter alia, those Acts and unfair dismissals legislation. It does not place any restriction on claims which may also have a course of redress under the maternity protection legislation, in particular requiring a complainant to choose one avenue of redress over the other”.

I find that I am not prohibited from considering the complainant’s complaints under both the Employment Equality Acts and the Maternity Protection Acts.

The complainant commenced work with the Respondent in June 2016. In April 2017 she was appointed to the position of Head of Human Resources, reporting to the MD.

On 29th July 2018 the complainant commenced her maternity leave. She returned to work on 24th June 2019.

The complainant submits that the position to which she returned following her maternity leave was materially different from that which she occupied immediately prior to her leave. She claims the respondent discriminated against her in the manner of her return to the workplace after a period of protected leave. She states that she was therefore treated less favourably than another person has or would have been treated in a comparable situation on the grounds of her Gender (as detailed in Section 6 of the 1998 Act (as amended). The complainant argues that the changes were so significant as to constitute prima facie evidence of discrimination.

The complainant submitted a table comparing her role pre and post- maternity leave. It is reproduced hereunder.

The complainant argues that the above table shows that under multiple areas of responsibilities her role was significantly diminished. The proposed new role was disadvantageous to the complainant and has reduced her prospects of progression to a higher-level HR position let alone maintaining the level of responsibility she enjoyed prior to her taking maternity leave.

The complainant stated in evidence that her role prior to going on maternity leave was predominantly concerned with drawing up contracts for cabin crew, pilots and staff, producing the handbook, devising HR policies. She reported to the then Managing Director. It was not a broken line of reporting. Following her return from leave she reports to the Global Talent, People and Client HR Services Manager (“HR Manager”) and has a broken line of reporting to the MD appointed in May 2018.

The complainant maintains that the above table demonstrates that the redistribution of her duties following her return from maternity leave saw her lose several staff; she lost a crew manager whom she managed and on whom she conducted performance appraisals. She lost 2 HR Generalist executives. The complainant was down 2 administrators on return from leave. The Data Protection Officer who had reported to her was reassigned to another manager. The complainant’s representative said it was not denied that she had 7 direct reports pre-maternity leave and 3 afterwards.

The complainant accepted on cross examination that the Canada- based VP told her at the January 2019 meeting while she was on maternity leave that a new HR position was being created and that she would report to that person who would be based in Ireland. The complainant accepted that she did not ask to be considered for the role at that time. She was shown a re-organisation chart in January but that just had titles and no functions.

She requested clarity about her role, and none was forthcoming. The complainant was not adequately consulted about the impact of or the changes which the September 2018 strategic review could have on her pre- maternity leave role. The complainant tried to get clarity about her position post- return; she asked the MD in April about her role on the leadership team. He declined to answer her. He did indicate that the respondent had hired a new HR manager. This post was filled in or around April 2019. She was not told of the loss of her leadership position. She asked the new HR manager in May 2019 to whom should she report; he was uncomfortable and didn’t respond. The complainant in answer to a question that she had been advised in the January discussions that she would no longer be a member of the management team was emphatic that she had not been advised that she would no longer serve on the leadership team.

Reception, Facilities and HR co-ordinator still report to her.

The MD advised the complainant that the VP of Human Capital, based in Canada, had decided on the changes and that she would speak to her about her role. The complainant emailed the VP in Canada in April 2019 to establish what changes to her role were afoot. A meeting scheduled for May with the VP didn’t take place due to a mistake about the location. But they did speak on the phone. The VP apologised for not having sent the complainant the job description for the new role. It was sent on 10 May 2019. The basis for the revised job description was not fleshed out with her. The complainant asked why the respondent issued her with a new job description in May 2019 if her job- as they are arguing- is the same.

The complainant advised the respondent on 20 and 22 June that she was unhappy with the changes to her role.

After her return she was issuing contracts to staff and as per usual contacted managers re personnel matters. They advised that the new Global Talent, People and Client HR Services Manager would be dealing with these matters.

She declined the offer of mediation as she believed that all the 3 nominees for the position of mediator had been engaged in moving her out of her position. It was not external mediation.

The complainant accepted that she had signed a statement on 23 October 2017 accepting what was called a promotion to the post of Human Resources Counsellor. No altered job description or reporting arrangements came with the change of title. She signed a contract for the position of Head of Human Resources, dated August 2017, with a reporting relationship to the MD and Global Business leader.

Failure of the respondent to consider the complainant for the promotional post.

The complainant questions the respondent’s assertion about the need for a different type of HR executive to deal with the new 300 crew members. The complainant states that she did a lot of work on the policy and procedures for these new employees. Prior to the arrival of the additional 300 employees the complainant states that she was engaging with unions, managed disciplinary processes and dealt with the project team for integration of the Airline’s additional 300 employees.

There was no advertisement for the new role. The complainant never got the chance to apply for the newly created HR role. She should have been told about the option to apply for the job.

Working from Home.

The complainant accepts that she did work from home one day in July.

The complainant’s representative relies on a number of authorities. In Campbell v Bank of Ireland DEC-E2013-046, a caseconcerning the equivalence of the job on offer to that complainant following her return from maternity leave the equality officer stated

“Matters that stand out in establishing whether the two posts were equivalent relate to the reporting structure of the positions, the point of contact elements with clients, the identification of post -holders in information reports”

The equality officer concluded that the positions were not equivalent; the position to which that complainant returned was less favourable and awarded compensation for discrimination.

In Gardiner v Mercer Human Resources Consulting DEC-E-2006-007, the complainant was faced with a new reporting structure, the removal of certain tasks and a lack of clarity about her function which was not the case prior to her maternity leave. The equality officer concluded that the respondent would not have acted in this manner if faced with a man or a woman without a child returning to work. The complaint of discrimination was upheld.

The complainant relies, additionally, on ADJ-00013042 - A General Manager v a Rental Company where a woman was demoted from a general manager’s position to that of an operative following her return from maternity leave.

The complainant does not accept that she occupies the same job. The fact that she has the same title is irrelevant.

The respondent’s actions and failures are a breach of the Employment Equality Acts.

The respondent denies that they acted in a discriminatory manner towards the complainant. The respondent submits that she got her same job back and if the adjudicator rejects that argument the respondent states that the adjudicator must accept that she was appointed to a suitable alternative role. The operations element of her role is unchanged.

The respondent provides aviation recruitment and airline support services.

The complainant commenced employment with the respondent in 2016. She was promoted to the position of Human Resources Counsellor on 1 May 2017. On 29th July 2018 the complainant commenced her maternity leave and returned to work on 24th June 2019.

Changing needs of the organisation.

Until about two years ago the respondent supplied pilots on contracts to airlines and hence these pilots were not employees of the respondent. The contracting out of these pilots was managed by the respondent’s operations team. At that time, the respondent had 160 employees whose issues were handled by the respondent’s HR department.

The respondent then expanded their business in 2018 and took over the direct employment of 300 crew members for an airline. The respondent stated that the contract with Airline 1 happened 6 weeks before the complaint went on maternity leave and that discussions were underway for 6 weeks before that.

The MD gave evidence that the key driver in changing the HR structure and hence the complainant’s role was Airline 1’s decision to outsource not only the recruitment of pilots but the training and management of the full crew to the respondent. It was a new revenue generating stream for the respondent. The respondent employs the crew members and deals with all HR issues, negotiates with the multiple unions representing these 300 crew members and deals with grievance procedures and disciplinary matters.

The organisational strategic review undertaken in September 2018 encompassed changes not just in the HR department but in the sales and client management departments. They centralised recruitment.

A Suitable Alternative Role

The respondent accepts that there were a few minor changes to the role. It is submitted in the alternative (if it is deemed by the Adjudication Officer not be the same position) that the complainant returned to a suitable alternative role on her return from maternity leave. The complainant still deals with the same 160 employees. Her key HR functions are unchanged. The respondent now employs 300 employees directly whereas before the complainant went on maternity leave, they did not.

Discussions with the complainant about the changed role during and after her return from maternity leave.

The respondent advised that they explained to the complainant that they intended to expand the human resources function into a revenue generating arm of the company, offering HR services to external companies.

The VP Human Capital (“VP”) gave evidence that she met the complainant and advised that they would be recruiting a new HR manager to work on the global dimension of HR and to deal with the new role with Airline 1. The complainant did not express an interest in applying for the job. The complainant suggested a recruitment company. She discussed the changes with the complainant. The VP stated that she didn’t expressly state to the complainant that she would no longer be on the management team because she believed that to be implicit from the new organisational chart. The VP made efforts to meet the complainant in May, but that did not happen because of a mistaken location. The VP encouraged the complainant to contact the new HR Manager.

The new HR manager to whom the complainant now reports stated that he reports to the VP but has a ‘dotted’ line reporting to the MD. He negotiates with trade unions and with the Airline on pay negotiations. He took on 3 new HR executives who had worked previously in the airline industry to help with the expanded function of the HR department.

He asked the complainant to postpone the one day a week working from home arrangement so that the new HR personnel could acquaint themselves with the complainant and establish what had to be done. The respondent agreed to allow the complainant to work from home in July.

There was a return to work meeting and consultation prior to her return and her refusal to mediate. The respondent made efforts to discuss the complainant’s concerns prior to and after her referral of a complaint to the WRC.

The respondent states that a reporting line is not determinative of a change in the role.

Failure to promote the complainant to the new enhanced HR position.

Prior to the complainant taking maternity leave, she was HR Counsellor, reporting to the VP of Human Capital, based in Canada. The complainant has a broken line reporting to the MD, who was her line manager for operational reasons.

The respondent MD stated in evidence that the task of managing the 300 additional crew staff for the airline went beyond what the company had. The respondent wanted to sell their HR expertise to other companies and generate an income stream, so they created a new senior HR role to drive the revenue generating possibilities and the enhanced HR function. The MD acknowledged that the complainant had a function with the Airline before she went on maternity leave, but the context changed. The company were now managing the crew for 9 aircraft as opposed to 3 aircraft when the complainant went on maternity leave. The MD stated that they looked at the complainant’s skill set and decided a different skill set was required for the expanded HR function. The MD advised that the primary difference between the role undertaken by the complainant and the new HR role was the ability to create a revenue generating stream.

The new HR manager was appointed in or around April 2019.

The MD was unable to state when asked if the new HR manager was doing tasks previously performed by the complainant.

Conclusion.

The cases referred to by the complainant’s representative are at the extreme end of loss of responsibilities. She is doing the same job – managing 160 staff.

The respondent argues that the complainant had decided that it was a different job prior to her return from maternity leave.

The respondent relies on Cunningham v Intel Ireland, DEC-E2012-020 which held that “the strategic role” given to that complainant after her return from maternity leave was a suitable alternative even though many of the operational roles of her job were assigned to a more junior colleague while the complainant was on maternity leave.

The respondent asks the adjudicator to find against the complaint that they discriminated against the complainant on grounds of gender and family status.

The issue for decision is whether or not the respondent discriminated against the complainant on grounds of gender and family status upon her return to the workplace after a period of protected leave in terms of her conditions of employment.

Relevant Law.

Council Directive 2002/73/EC of 23 September 2002 amending Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards to access to employment, vocational training and promotion, and working conditions states:

“A woman on maternity leave shall be entitled, after the end of her period of maternity leave, to return to her job or to an equivalent post on terms and conditions which are no less favourable to her and to benefit from any improvement in working conditions to which she would be entitled during her absence.".

Section 6.2A of the Employment Equality Act, 1998 as amended recognises that discrimination on the gender ground shall be taken to occur where “on a ground related to her pregnancy or maternity leave, the woman employee is treated in a manner which is contrary to any statutory requirementless favourably than another employee is, has been or would be treated” The statutory requirement with which the respondent must comply is section 26 of the Maternity Protection Act,1994 which states that an employee is entitled to return to work

“under terms and conditions not less favourable than those that would have been applicable to the employee if she had not been so absent from work”

Burden of Proof

Section 85A of the Acts sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts upon which she can rely in asserting the she suffered discriminatory treatment. Where the complainant demonstrates that such a prima facie case has been established, the onus then shifts to the respondent to rebut the inference of discrimination raised.

Less favourable conditions of employment on grounds of gender.

I find that the evidence submitted at the hearing indicates that the complainant did not return to the same position. She returned to an altered role following a period of protected leave- maternity leave. The significance of the changes is disputed. I find the complainant has raised an inference of discrimination in the sense that her gender and her maternity leave are within the range of possible reasons why the respondent chose not to return her to her exact same role or a role with the same level of responsibility within the organisation following her return from maternity leave.

The respondent’s rebuttal of the presumption of discrimination.

The respondent asks that I accept that the complainant was given a suitable equivalent alternative in circumstances where I find that her role had altered following her return from maternity leave. The respondent rebuts the inference of discrimination by explaining that it was the restructuring which drove the changes in the HR department and in her role. The changes to her role were unconnected to the fact of her having taken protected leave. They say that the changes to the complainant’s role were negligible and of no import.

I accept that the respondent’s needs changed in the sense of the additional staff and the proposed revenue generation direction. I accept that nothing remains static for ever. But while the complainant was advised of the organisation’ s plans to engage a HR manager for the expanded role, I find that the respondent displayed a disregard for how the organisational changes within the organisation and the new HR position would impact on the complainant’s role and status.   She was told that she was still managing the same 160 employees, but the evidence demonstrates little if any clarity concerning what was to be shaved off her role or what was replacing what she used to do. Her terms and conditions of employment set out in a letter dated 9 August 2017 described her as Head of Human Resources reporting to the MD. This should have been the operative contract for her on her return from maternity leave. An organisational chart dated 29 January 2019, drawn up while she was on maternity leave, sees her described as one of 2 Human Resources Business Partners reporting to a HR manager whose identity had yet to be confirmed. Impact is not merely confined to salary, leave facilities and such tangible benefits.

The efforts to meet and discuss matters with her happened after the changes had been solidified and appointments made which would siphon off some of her former responsibilities.

No effort was made to retain her in the senior leadership team or to reverse the consequences of this. This reduced her influence in the organisation, her capacity to learn about, understand and shape the direction of the organisation. The uncontested evidence is that she had a reduced supervisory or managerial role in the sense that she was reduced from 7 direct reports to 3. These staff now reported to other personnel. Her role contracted. She lost responsibility for sites outside of Ireland reducing her international reach. It appears she was given an increase in administrative type tasks- tasks done by those who had previously reported to her but who were no longer supporting her function. When in early July 2019 she told the new HR manager about the increase in administrative tasks always done previously by those reporting to her she was told she had always been responsible for the department. The crewing manager no longer reported to the complainant. I cannot say that her managerial function stayed constant or undiminished.

In addition, the complainant had been the most senior HR manager in the Dublin office reporting to the MD up until her return from maternity leave. She no longer occupied the senior position. Now she reported to a new and more senior HR manager appointed above her.I find that the revised role offered a diminished amount of responsibility and influence.

Therefore, I do not find the role to which she returned to be an equivalent role following her period of protected leave.

In A Government Department v An Employee (Ms. B) (2) the Labour Court took account of the decision in Nagarajan v London Regional Transport (3) in holding "that the proscribed ground need not be the sole or even principal reason for the conduct impugned; it is enough that it is a contributing cause in the sense of being a significant factor".

Discriminatory acts need not be intentional.

I find that the respondent has failed to rebut the inference of discrimination in terms of less favourable conditions of employment. Had the complainant not been on leave, and not been removed from the senior leadership team she would have been able to exert some influence over her responsibilities within the HR department and within the organisation. This element of her complaint must succeed.

I find the respondent failed to return her to

“ her job or to an equivalent post on terms and conditions which are no less favourable to her and to benefit from any improvement in working conditions to which she would be entitled during her absence."

I find this failure to be evidence of discrimination on grounds of gender contrary to the provisions of the Employment Equality Acts.

Failure to promote the complainant as evidence of discrimination on gender grounds.

The Labour Court in O’Higgins v UCD, EDA 131, which concerned a complaint about a failure to promote that complainant reflected previous decisions in setting out the elements of a prima facie case of discrimination.

‘It is not necessary to establish that the conclusion of discrimination is the only, or the most likely, explanation, which can be drawn from the proven facts. It is sufficient if it is within the range of presumptions that can be properly drawn from those facts.……

The Court will not normally look behind a decision in relation to appointments unless there is clear evidence of unfairness in the selection process or manifest irrationality in the result.

A lack of transparency in the selection process combined with an absence of any discernible connection between the assessment or qualifications of candidates and the result of the process can give rise to an inference of discrimination.

Where a prima facie case of discrimination is made out and where the respondent fails to show that the discriminatory ground was anything other than a trivial influence in the impugned decision the complaint will be made out.

The Court must be alert to the possibility of unconscious or inadvertent discrimination and mere denials of a discriminatory motive, in the absence of independent corroboration, must be approached with caution.”

In the instant case there was total absence of transparency concerning the existence of a competitive process for the promotional post of HR Manager. The complainant prior to taking maternity leave had held the most senior position in the HR department. The complainant was not advised of any advertisement, or of the selection process, nor was she invited to compete alongside all-comers for the position. The complainant was denied the opportunity to compete for the position.

I find that the absence of transparency about the appointment process for this post does raise an inference of discrimination. Discrimination is within the range of presumptions that can be properly drawn from the respondent’s decision to dispense with a competition for this post. While I accept the validity of the respondent’s argument about the enhanced HR function, her candidacy for this position was a foregone conclusion. The MD stated in evidence that she did not possess the skill set for the role. No opportunity was presented to her argue the contrary. No consideration was given to upskilling.

The respondent did not answer the questions put to them by the complainant’s representative concerning the existence of a competition for the post or the number of applicants for same.

The respondent failed to demonstrate how allowing the complainant compete for the HR manager’s position would endanger their objective of creating a revenue generating position..

I do not find that the case of Cunningham v Intel Ireland, DEC-E2012-020 assists the respondent as the finding there was that that complainant maintained a strategic position in the organisation while losing some of their operational roles to a more junior colleague. The complainant in the instant case has lost her strategic role by her exclusion from the senior leadership team and the absence of any compensatory position.

I find that the respondent has failed to rebut the inference of discrimination.

The Labour Court in O’Higgins v UCD stated that “where the onus of proof is on the respondent the question the Court must ask itself is whether it is more probable than not that the complainant's gender had nothing to do with her failure to be promoted. If, on the basis of all the evidence, the Court answers this question in the affirmative the respondent will have discharged its burden. If the Court cannot answer that question in the affirmative, or if it concludes the probabilities are equal, the respondent will not have discharged that onus and the complainant must succeed.” Miller v Minister for Pensions [1947] 2 All E.R. 372 at 374 applied.

Based on the evidence submitted, I cannot conclude that the complainant’s gender had nothing to do with the respondent’s exclusion of her from the competitive process established to select a HR manager.

I find that the exclusion of her from the competitive process is evidence of discrimination on grounds of gender contrary to the provisions of the Employment Equality Acts.

Complaint of discrimination of grounds of family status.

The complainant identified this complaint on the WRC form but confined her submission to the effects of having been on maternity leave when the changes to her role occurred. She did not make out a case of discrimination on family status grounds.

Complaint of victimisation.

The complainant did not make out a case of victimisation.

Complaint of Harassment.

The complainant did not make out a complaint of harassment.

I require the respondent to pay the complainant the sum of €41,370 which represents six months’ salary in compensation for the distress resulting from the discrimination.

I have decided to anonymise the parties as the evidence contained in this complaint matches exactly the evidence submitted by the complainant in a complaint under another statute, and would serve to disclose the identity of the complainant in that other complaint.

I find the complainant was discriminated against on the grounds of gender. I require the respondent to pay the complainant the sum of €41,370 which represents six months’ remuneration in compensation for the distress resulting from the discrimination.

Failure to provide an equivalent position on return from maternity leave.