Complainant

Respondent

Parties

Kerry-Anne  Ridley

 Sweet Graphic & Web Design

Representatives

  Watch Your Back Ireland

 Peninsula Business Services

Act

Complaint/ Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 19 of the Carer's Leave Act 2001

CA-00039011-001

03/08/2020

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

CA-00039011-002

03/08/2020

The respondent is a small graphic design company and the complainant commenced employment there as a Graphic Designer on March 1st, 2017.

As a result of the Covid-19 pandemic and it initiated a redundancy process in order to restructure in the hope of achieving sustainability and the complainant’s role was made redundant on June 15th, 2020.

The complainant was due to return to work on March 23rd, 2020, after maternity leave and availed of the extra unpaid sixteen weeks leave. 

On the March 20th, 2020, she was paced on put on temporary layoff due to Covid-19.

The business did not close, and more than six weeks passed without an update. She got no assistance from the employer to apply for the Covid-19 payment and missed out on five weeks of payment as she had no letter from the respondent.  Her case was not straight forward as she had been on maternity before this happened.

She continuedtoaskforupdatesfromtherespondent and wastoldthatthere wasnoworkinandthat they were updating the website. She was then made redundant on June 15th, 2020.

Now she feels that she was unfairly selected for this. 

When her return to work date was being discussed (pre-Covid) she sought one day a week parental leave, as she understands this had been granted to a co-worker, but no agreement could be reached.

The respondent denies paying her co-worker for this one day a week, but the complainant was told she got paid.

The respondent also said that to decide on who should get made redundant, she made a "matrix" of the two employees based on attendance and performance, and they scored equally.

The complainant never saw this "matrix" and does not believe it exists.

She accepts that I was "last in, first out" and my employer may say that she followed correct procedure, but I was technically on Maternity leave she did not get the chance to return to work after maternity.

The respondent suffered badly as a result of the Covid-19 pandemic, due to the loss of high value contracts and cancellation of events. 

It initiated a redundancy process in order to restructure in the hope of achieving sustainability and the complainant’s role was made redundant as of June 15th, 2020.

The complainant made two complaints on August 3rd, 2020, under Section 19 of the Carers’ Leave Act 2001 in which she alleges that she was not permitted to return to work on the expiration of her carer’s leave, and one pursuant to Section 77 of the Employment Equality Act 1998 in which she alleges she was discriminated by reason of her gender and family status by the Respondent.

The respondent rejects both the claims for the following reasons.

On January15th, 2019, the complainant was promoted to Senior Graphic Designer with the respondent and received a salary increase. 

In the earlier stages of her pregnancy, she was finding her commute difficult and asked if she could work from 8.30 to 4.30 pm for family reasons and, the respondent agreed to this. This arrangement continued until the complainant commenced maternity leave on May 31st, 2019.

She was due to return from maternity leave in December 2019, but requested additional leave until January 21st, 2020, which was agreed.  The parties met in November 2019 to discuss her return to work on a four-day week, and this was agreed with a proportionate reduction in salary.

She also availed of sixteen weeks additional leave and would not return to work until March 23rd, 2020.  However, due to the onset of the pandemic and lost projects a decision was made to place the complainant on lay off.

This was confirmed to her by email of 20 March 2020.

The respondent business suffered badly as the pandemic progressed and after a period of lay off and reduced hours, the respondent commenced the redundancy process on May 21st, 2020, with the two roles within the Company being placed at risk of redundancy on this date.

The two roles placed at risk on May 22nd were that of the complainant, as Senior Graphic Designer, and the Creative Director.

An at-risk meeting was held with both the complainant and her colleague on May 21st, 2020.

The respondent outlined the cost cutting measures and the potential need for redundancy due to the financial situation. The complainant was invited to request voluntary redundancy should she wish or explore any alternatives in order to put forward suggestions or proposal for the meeting of May 29th.

In the letter dated May 22nd, 2020, the respondent confirmed that the complainant’s role was at risk and that a consultation process would follow, inviting the complainant to a formal consultation meeting on May 29th, 2020.

On May 29th, 2020, the respondent informed the complainant of the proposed selection criteria to be adapted.

The complainant alleged that there was unfair treatment between her and her colleague and alleged that her colleague was being paid for parental leave whilst she was not.

The respondent confirmed that the colleague in question had not been paid for parental leave and asked that the complainant email her any proposals and ideas she may have to avoid a redundancy situation.

The complainant proposed that the respondent delay the redundancy until a later date.

On June 2nd, 2020, the complainant was invited to a final consultation meeting to expand on earlier points and allow feedback on the proposal raised.

The final consultation meeting took place on June 5th, 2020, when the complainant confirmed she had no proposals to make and did not wish to elaborate on the point she raised in relation to unfair treatment.

On June 15th, 2020, it was confirmed by letter to the complainant that her role was redundant following the consultation process as there were no alternatives discovered.

On June 19th, 2020, the complainant lodged an appeal against the redundancy although she did not set out the grounds of her appeal.

An appeal hearing was arranged, but the complainant could not attend. And a second hearing took place on July 22nd.

Regarding the complaint under the Carers Leave Act 2001 the respondent says that the complainant never availed of carers leave. Therefore, that complaint is not well founded and should fail.

In the second complaint, under the Employment Equality 1998, the complainant alleges she was discriminated on the basis of her gender and family status.

In doing so she asserts a link from her redundancy selection to the discussion on her availing of parental leave and her payment for such leave.

She then details how it was unfair that she was not permitted to work from home whilst she had no designated office space and her children were not cared for outside of the home, although she felt her colleague was permitted to work from home in the circumstances.

She also raises issue that her work email address was removed prior to redundancy, she did not get to see a scoring matrix made up of attendance and performance and maintains she did not get the chance to return from work after maternity leave.

The respondent submits that the complainant has not set out a prima facie case of discrimination. The law requires that the complainant establish a prima facia case of discrimination before the burden of proof shifts to the respondent.

In this regard the respondent refers to the Labour Court decision of Millbury Developments v Arthur Valpetters (EDA0917) where the Court, set out the requirement of the probative burden of proof. (Detailed references were included in submission).

Furthermore, equality law requires an act of less favourable treatment to be established by reference to how another person, not having the protected characteristic relied upon, was, is or would be treated in a comparable situation.

The colleague being referred to by the complainant is of the same gender and same family status as the complainant and was subject to the same treatment and thus, cannot be a comparator.

In conclusion, the complainant’s role being made redundant was directly as a result of the loss of contracts and revenue, of which could take years to rebuild.

The redundancy of the senior Graphic Designer role was not discrimination on the grounds of gender or family status as alleged as this role and the Creative Director role were both filled by those of identical family status and gender. Thus, if treated differently, the protected characteristics as alleged, were not the reason.

The respondent made the selection for redundancy on the basis of length of service and not on the grounds of gender or family status.

The facts of the matter are well set out in the narratives above and, apart from some important matters of detail are not in dispute.

It is, sadly, yet another unfortunate story of the devastating impact of the Covid-19 pandemic on the economy and on business; in this case a very small business in which, prior to the events giving rise to the complaints, the parties had enjoyed excellent working relationships.

While the complaints relate to alleged breaches of the Carer’s Leave Act and the Employment Equality Acts, there is a clear grievance about the fact that the complainant was not facilitated with leave on the same basis (so she alleges) as a co-worker, although her claims in this regard are denied by the respondent.

It seems likely that the complainant’s sense of grievance over this aspect of matter contributed to her decision to make the complaints in this case.

However, those complaints must be decided strictly on their merits and on the basis of the statutes.

In that regard the complainant is on very weak ground.

She had not been on Carer’s leave and therefore has no basis for a complaint under that Act. Indeed, she makes no specific complaint that grounds a complaint under the Act and her complaint in that regard must be regarded as misconceived.

Her complaint under the Employment Equality Acts is no more specific and appears to be related to the selection for redundancy and the denial of the same facilities for home parenting as she claims had been granted to her co-worker. Her complaint is on the gender and family status grounds.

As noted above there is a conflict between the clear evidence of the business owner regarding the terms on which the co-worker got parental leave and the complainant’s assertion based on what she says the co-worker told her. (The latter was not available to give evidence).

I accept the respondent’s evidence and in any event no basis for a complaint under the Employment Equality Act arises where the comparator has exactly the same gender and family status as the complainant, as submitted by the respondent.

Even if the complainant’s information had been correct, some element of unfairness might arise, but not a breach of the Act.

The respondent speculates, and I must also that an element of the complaint relates to a suggested link between her redundancy selection and the grievance related to her availing of parental leave and her payment for such leave.

However, the only case made out of any unfairness in the redundancy selection process related to the fact that the complainant was not given sight of the selection matrix, and she should have been.  In the event she was selected on the basis of service and so this is a less decisive consideration.

No element of a breach of the Employment Equality Act can be discerned here and the complainant has not made out a prima facie case.

For the reasons set out above complaints CA-00039011-001 and -002 are not well founded

For the reasons set out above complaints CA-00039011-001 and -002 are not well founded

Redundancy, equality, carers