Complainant

Respondent

Anonymised Parties

A Social Worker

A Service Provider

Representatives

Paul Mc Glynn HRS Consultants

Peter Flood IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00035050-001

05/03/2020

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

CA-00035050-003

05/03/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 30 and 31 of the Maternity Protection Act 1994

CA-00035050-004

05/03/2020

The complainant commenced employment with her previous employer as a Social Worker in January 2011. In May 2014, following the departure of a colleague on career break, she assumed the role of Senior Social Work Practitioner with that organisation on a fixed term contract. She subsequently went on maternity leave in November 2018. While on maternity leave, she was informed that the fixed term contract would be ending due to the departure of the staff member who had previously occupied the role. She was also subsequently made aware the permanent role of Senior Social Work Practitioner would be moving to the respondent and that she would have to apply for it.

She is alleging that she was discriminated against because she was on maternity leave when she was informed of the change in her role, that she should have been offered a contract of indefinite duration with the respondent because her fixed term contract with her previous employer had exceeded four years and that the role she had previously fulfilled should have been made available to her at the end of her maternity leave.

The complainant commenced employment with her former employer as a Social Worker in January 2011. In May 2014, following the departure of a colleague on career break, she assumed the role of Senior Social Work Practitioner on a fixed term contract. She subsequently went on maternity leave in November 2018.

While on maternity leave in June 2019, she was informed that the fixed term contract would be ending due to the departure of the staff member who had previously occupied the role and that she would have to apply for the permanent role which had arisen as a result of this departure.

She was subsequently informed in a telephone conversation with her line manager Ms A in August 2019 that the permanent role of Senior Social Work Practitioner would be moving to the respondent and that they were going to advertise for it.

The complainant stated that while the situation was very stressful and unfair, she nonetheless interviewed for the permanent role of Senior Social Work Practitioner with the respondent on 16th September and was successful. As a result, she resigned from her position with her previous employer on 20th September 2019.

She was subsequently informed by the respondent on 27th September 2019 that her contract of employment would be totally new and that she would be treated as a new employee, subject to the normal probationary period and that her service with the prior organisation would not be transferred across.

She nonetheless commenced employment with the respondent on 12th November 2020.

The Respondent stated that as a result of a new national policy initiative, it was made the lead agency for the Children’s Disability Network Teams for the county. This meant that if a permanent employee left the complainant’s previous employer, then that role transferred to the lead agency, namely the respondent, which was then responsible for the recruitment of the new role. As a result, when the resignation of the permanent employee whose position the complainant was filling on a fixed term contract since 2014 took effect in June 2019, the vacancy and the responsibility for filling it moved to the respondent.

During her maternity leave, the complainant was kept informed of developments by her previous employer in relation to the permanent post she had originally filled and the role she was fulfilling on a fixed term contract. Specifically, she was told that her previous employer was in the process of devising a new role for her given that the position she had previously occupied on a permanent basis was no longer available. In addition, she was informed on August 22nd 2019 the permanent role to replace the fixed term role she had previously fulfilled was advertised by the respondent. The complainant was successful in her application for this new permanent role and she resigned her position with her previous employer on September 20th to take up the new position with the respondent, having successfully interviewed for the role.

CA-00035050-001:

The Law

Section 6 of the Employment Equality Act states:

(1)   For the purposes of this Act, discrimination shall be taken to occur where, on any of the grounds in subsection (2) (in this Act referred to as “the discriminatory grounds”), one person is treated less favourably than another is, has been or would be treated.

(2)    As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

(c) that one has family status and the other does not (in this Act referred to as “the family status ground”),

Section 8 of the Act further states

(1) In relation to—

(a) access to employment,

(b) conditions of employment,

(c) training or experience for or in relation to employment,

(d) promotion or re-grading, or

(e) classification of posts,

an employer shall not discriminate against an employee or prospective employee and a provider of agency work shall not discriminate against an agency worker.

In evaluating the evidence before me, I must firstly consider whether the complainant has established a prima facie case pursuant to Section 85A of the Act.  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. 

I note that the complainant voluntarily applied for a role with the respondent while she was on maternity leave and that she was successful in obtaining this role. No evidence was presented to suggest that the respondent initiated any contact with her prior to her application for the role or colluded with her previous employer to oblige her to apply for the role. In the absence of any evidence to suggest that she was discriminated against by the respondent, I find that she has not established a prima facie case.

CA-00035050-002: I note that the complainant applied for a permanent role and commenced employment with the respondent on 12th November 2019 on a permanent basis, subject to a six-month probationary period, and that she was at no stage engaged on a fixed term contract by the respondent in the instant case. Accordingly, she does not have locus -standi to pursue this complaint.

CA-00035050-003: While the complainant was on maternity leave with her previous employer, she did not commence her employment with the respondent in this matter until 12th November 2019, which was after the period of maternity leave with her previous employer had ended. No evidence was presented during the hearing to suggest that she:

(i)                  was on maternity leave with the respondent between 12th November 2019, and when made her complaint to the WRC

(ii)                was pregnant during the period between when she started with this respondent and made her complaint to the WRC

(iii)               was an “employee who has recently given birth”

(iv)               was “an employee whose date of confinement was not more than 14 weeks earlier and who has informed her employer of her condition”.

In the absence of such evidence, I cannot make a finding in her favour.

CA-00035050-001: I find that the complainant was not discriminated against.

CA-00035050-002:  I find that the complaint is not well founded.

CA-00035050-003:  I find that the complaint is not well founded for the reasons set out above.