Complainant

Respondent

Anonymised Parties

A complainant

A respondent

Representatives

Patrick Fox Hoey & Denning

Muireann McEnery IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00038561-001

07/07/2020

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant was employed by the respondent employment agency and since August 2013 has worked in a position as a clerical worker in a school secretary role within a health service provision setting.  She was paid at a rate of €14.79 per hour.

The complainant submitted that she was employed as a clerical worker in a school secretary role since August 2013.  She was employed as an agency worker and was placed in this role by the respondent.  In October 2019 she went on Maternity Leave.

The complainant submitted that prior to going on Maternity Leave, she was always under the impression that she would return to that role.  The complainant submitted that in February 2020 she contacted the respondent to enquire about returning to that role and was informed that the role was gone.

The complainant submitted that when she had availed of Maternity leave previously there had been no problem with returning to that role.  She submitted that when she enquired as to why the position was not available, she did not receive an answer.

The complainant submitted that she had a number of conversations with the respondent in April and May 2020 and was offered an interview for a different role.  She submitted that she was instructed by the respondent not to contact her former place of work again.  The complainant submitted that she had made numerous calls to her former place of work but was informed that they were not her employer but rather the employment agency was her employer.

The complainant submitted that she raised a formal complaint on 27 May 2020 and the respondent looked into the matter but informed her that all the services at her former location were suspended due to the pandemic.  The complainant submitted that she did not accept this as the person she trained in was still employed in her former role.

The complainant submitted that she became further distressed to learn that her former role was due to be filled from direct recruitment.  She further submitted that she had a reasonable expectation to return to her former role following her Maternity Leave.

The respondent submitted that it is a recruitment agency spanning a large breadth of industries nationwide.  The respondent submitted that the complainant was employed as a Temporary Admin worker.

The respondent submitted that the complainant was placed by them continuously with its client in a position of school secretary from 2013.  The availed of her first maternity leave and upon her return the role was available and accordingly the complainant was assigned to that role again.

The respondent submitted that the complainant made contact with it on 5 March 2020 indicating that she intended returning to her former role pending childcare issues arising from the pandemic.

The respondent submitted that it contacted the complainant on 6 April and left a message on her phone.  The respondent submitted that when contact was finally made on 21 April, the complainant was informed that eh client indicated that the role was no longer available.  The complainant was advised that the respondent would have no problem placing her in another area but that the complainant was adamant that she wanted to return to the role she had occupied prior to her Maternity Leave.

The respondent indicated that further contact was made with the complainant on 21 and 22 May and other opportunities were discussed with her, but she again expressed no interest in them.

The respondent submitted that the complainant has not established the existence of a male comparator for the purposes of grounding the complaint.  The respondent submitted that, accordingly, the complainant has not established a prima facie case of discrimination.

The respondent submitted that the correct legislation that a complaint should have been taken under was the Maternity Protection Act 1994 as amended, rather than the Employment Equality Acts of 1998. 

The respondent submitted that the complainant was working as a Temporary Admin Worker, that her contract was never terminated, and upon her return to work she was offered numerous alternatives.  The respondent submitted that when the original role that the complainant had undertaken resumed, it was filled internally by the client.

It is settled law that the period of Maternity Leave is a specially protected period.  It is also settled law that less favourable treatment arising from Pregnancy or Maternity leave may amount to discrimination on the Gender ground, and that a complainant does not have to establish the position vis-à-vis a male comparator to establish the existence of a prima facie case of discrimination relating to Maternity Leave.  I do not propose to revisit these aspects of the legislation at this time.

Where a complainant establishes a prima facie case such as to infer discrimination under the Equality Acts, the burden of proof shifts to the respondent to rebut that inference.  In the instant case, the complainant alleges that she was less favourably treated upon her return from Maternity Leave and it is this aspect of the case that I wish to consider in more detail: 

To be clear, the complainant was employed by the respondent as a Casual Temporary worker on assignment to an Admin-Temps position.

The complainant contacted the respondent before the end of her maternity leave and was told that the role she had been filling was not available at that time.  Later on, while still on her Maternity leave she was in contact again with the respondent to indicate that due to childcare issues she would not be in a position to return to work until July 2020.  When she sought to return to work, she was informed that the role she had been undertaking on an agency basis was not available but was offered an alternative role in an Admin-Temps position.  She turned down the opportunity and indicated to the respondent that she was only interested in returning to work in her former role in the school secretary position.  This role was not in the gift of the respondent to give, and they offered her an alternative.

There was some discussion at the hearing as to the level of salary that would accrue to such a role, however the respondent was confident that she could return to a role with the same service provider which would take account of her years’ experience and would pay her at the same level.  The respondent also indicated a number of other roles that it had on its books (both at the time and presently) which the complainant could fulfil at similar or higher salary levels, but the complainant categorically ruled herself out of considering anything other than her original role.

Having considered the written and oral evidence provided by both parties, I find that the complainant has not established that she was subjected to less favourable treatment that would establish a prima facie case of discrimination.   Accordingly, the burden of proof does not shift to the respondent to rebut an inference of discrimination on the gender ground.

My decision is that the complainant was not discriminated against in accordance with the Employment Equality Acts, 1998 - 2015

Gender discrimination, prima facie case, burden of proof.