Complainant

Respondent

Parties

Nikki  Spillane

Jazz Pharmaceuticals Ireland Ltd

Representatives

Barry Crushell, Crushell & Co. Solicitors

Kevin Bell, BL instructed by John Casey, Matheson

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-00043152-001

21/03/2021

The Complainant was employed by the respondent from 13/04/2012 until 14/12/2020. During that time, she worked as Front of House Administrator and later as Facilities Manager.  She commenced maternity leave on 23/09/2019 and returned from maternity leave on 18/09/2020.  Prior to her return she was informed that after her return the position of Facilities Manager would be upgraded to a new role of Global Workplace Manager.  After she returned she felt excluded, underutilised and that her overall role had been reduced.  She raised her concerns on a number of occasions but did not feel that the situation improved.  In December 2020 she felt that she had no option to resign.  The respondent refutes the allegations and any changes in the workplace were as a result of the required changes arising from the COVID-19 pandemic.  The complainant was paid a gross salary of €3,958 per month.  She submitted her complaint to the Workplace Relations Commission on 21/03/2021.

The complainant worked for the respondent as a Front of House of House Administrator from 13/04/2012 and then as Office and Facilities Manger from 01/12/2015.  She commenced maternity leave on 23/09/2019.  On her return to work on 18/09/2020 she was previously advised that her role would be upgraded to the role of Global Manager.  It is the complainant’s submission that she was not afforded the opportunity to return to work after her maternity leave on the same terms and conditions that she had prior to going on maternity leave.  The complainant also contends that she was not afforded the opportunity to undertake the same nature and amount of work that she was employed to do.  She further submits that she suffered a detriment in her working terms and conditions as a consequence of taking maternity leave.  The respondent did not address her grievances in a satisfactory manner and this left her with no other option but to resign her position.

In her direct evidence the complainant outlined her employment history with the respondent and the nature of her duties.  When she returned from maternity leave on 18/09/2020 her role of Office and Facilities Manager was to be changed to that of Global Workplace Manager.  She did not have any handover despite requesting this and she was told by her manager (Mr A) that the employee who was covering her maternity leave (Ms R) would be staying on for a further six months.  Her duties were in the realm of standard office related tasks.  There was no discussion in relation to any changes and her duties remained the same.  The only change was in relation to the nature of the team which was now global as this team had four offices in various locations outside of Ireland.  It is the complainant’s view that the person covering her maternity leave continued do the same role as she had prior to going on maternity leave.   The complainant acknowledged that the workplace had to change due to the impact of the COVID-19 pandemic.  There were less employees in the workplace.  She did not receive any assurances that she would ever return to the role she had prior to going on maternity leave.  There were now two people doing the same role and felt that she was treated like a subordinate by her colleague.  The complainant confirmed that she raised her concerns informally with her manager (Mr A).  She told him that she had no work to do.  He wanted to keep her concerns within the team.  She outlined details of a meeting on 08/10/2020 at which these concerns were discussed.  There were no minutes, action plan or any change in the allocation of tasks following this meeting.  She was advised to focus on future projects and from 08/10/2020 to 17/11/2020 there were no changes and she was not given any other work.  She had weekly meetings with her manager, but she felt that these were going around in circles.  There were a number of e mails exchanged with her manager.

The complainant was left feeling that she was effectively demoted and lost 100% of the front of house role.  She did not escalate her concerns as her manager would have got angry if she did.  She felt that there was a complete breakdown of trust with her manager.  She did not feel confident speaking with the HR department as she felt bullied by HR as a result of her experience in dealing with them in 2017. 

The complainant outlined her reasons for resigning.  She had tried for a period of three months to resolve the issues but without success.  She felt that she was not been taken seriously. She had no trust in HR and was left with no other option but to resign.  This had a been a very stressful situation for her and her family. The complainant outlined that she submitted her complaint as she feels that employees in a situation like her have a right to come back to their role and she wanted to send a message to organisations that this was not acceptable. 

The complainant outlined her attempts to seek alternative employment.  She applied for a number of positions.  She commenced in a new role on 01/03/2021.  This is on an annual salary of €38,000 which is significantly lower than that which she was paid by the respondent.  She also does not have pension or other benefits which she enjoyed while employed by the respondent. 

Under cross examination the complainant confirmed details of the colleagues who were covering her maternity leave.   The original replacement left in March 2020 and was replaced by Ms R who remained in place after her return from maternity leave.    It was put to the complainant that Ms R was responsible for the respondent’s response to the COVID-19 pandemic and was familiar with the all the procedures and requirements in place.  The complainant confirmed that it was standard practice to have some overlap when someone returned from maternity leave. 

The complainant was taken through a number of e mails sent to her by her manager, Mr A.  She agreed that the initial e mail was welcoming and supportive.  She also confirmed that she on her return her terms and conditions were better and that her job description was also improved.  She confirmed that the colleagues on the Global Team were busy and were continually working.  She also confirmed that the role of Office Facilities Manger was graded at “Analyst Level” and that her new role was graded at “Manager“ level.

The complainant confirmed that she accepted that the closing of the office due to the pandemic had a significant impact.  She accepted that the nature and volume of work had an impact for every other manager.  The complainant also accepted that Ms R had responsibility for all COVID-19 activities on site from March 2020 onwards.  In addition to this Ms R was also tasked with a project in relation to change of vendors.  The complainant said that she could have undertaken some of this work.  She described herself as intelligent and capable and was not given any handover.

The complainant was taken through a history of e mail exchanges between her and her manger.  

In relation to the complainant’s concerns about Ms R remaining on it was put to her that this was solely for business continuity reasons and that she was aware that this was scheduled to end on 31/03/2021.  The complainant felt that Ms R had taken over her role and she could not understand why the respondent kept two people in the same role.

The respondent made a preliminary application to have the decision in this case anonymised.  This was based on reputational considerations by the respondent.

The respondent is a global company registered in Ireland.  The complainant commenced employment on 10/04/2013 as a full-time receptionist.  She was promoted to the role of Office and Facilities Manager on 01/12/2015.  The complainant commenced her maternity leave in September 2019.  During that time a number of changes were made to harmonise the role of Office and Facilities manager across their four global locations.  This resulted in the creation of new manager level positions called Global Workplace Mangers.

The complainant’s maternity leave was covered by another employee and when this employee moved elsewhere in early 2020 the post was covered by a temporary contractor, Ms R.  This was initially a fixed term contract covering the complainant’s position but was extended in order to ensure business continuity due to the on-going pandemic restrictions which were then in place.  The respondent also took account of the complainant’s preference to work from home and this arrangement with Ms R would facilitate her transition back into the workplace.  The respondent submits that it is significant that the complainant’s maternity leave had commenced before the pandemic.  Ms R was responsible for the significant co-ordination of the respondent’s workplace response and the subsequent restrictions and preparations which were necessary to allow employees to return to the workplace safely. 

The complainant’s return from maternity leave coincided with these significant and ongoing changes and challenges and at a time when all the respondent’s employees had to adapt to a different working environment and significantly altered duties.

When the complainant resumed duty, she was instructed to continue to carry out the same duties she had previously in the Office and Facilities Manager role along with some aspects of the upgraded role.  The complainant was informed on 01/09/2020 that she would be part of the Global Workforce Team.  She was also informed that the COVID-19 pandemic impacted the focus of the team.

The complainant was later given a copy of her new job description.  Her manager also had a discussion with her in relation to the model of working and the upward change in the complainant’s position.  Mr A, the complainant’s manager, also informed her that Ms R would be retained until mid to late 2021.  Mr A confirmed that the priority for the team was about the COVID-19 response and the preparation for returning to the workplace.

The complainant’s manager, Mr A continuously emphasised a “family first” approach in his dealings with the complainant.  Examples of e mails confirming this approach were opened at the hearing.  Mr A did not want the complainant to be in a position where she had to choose between work and home life.  He was supportive at all times and afforded a great deal of flexibility and compassion in relation to her return to work.  Mr A also facilitated the complainant to return to her full responsibilities even while working remotely.  He instructed her to familiarise herself with new policy documents including a facilities handover document. The complainant was asked to focus on the changed workplace due to COVID-19 and the rules and regulations which encompassed health and safety measures which were introduced during the pandemic.

The respondent submits that the workplace the complainant returned to in September 2020 “was radically different from the workplace she had left the previous year”.  This would have an immediate and obvious impact on the complainant’s role and duties.  For example, most people-facing duties were no longer required as the word-from-home order was still in place.  This unprecedented situation required flexibility from all employees.

The complainant had a detailed conversation with her manager on 24/11/2020.  Mr A clarified that Ms R would only be working on a temporary basis “in order to provide practical on-the-ground support” during the pandemic.  Mr A also confirmed that Ms R’s contract wold expire in 2021.  Mr A outlined the areas that he wanted the complainant to work on.  These included strategy, long-term goals, global coordination of the respondent’s workplaces and vendors’ contracts.  The complainant made no reference to feeling underworked at that meeting.  He was surprised to receive an e mail from the complainant the following day stating that she felt “underutilized” since she returned to work.  He outlined the changes which arose due to COVID-19 and the impact of these on the complainants role.  Mr A also provided comprehensive feedback and other suggestions for work that the complainant could undertake.   This included a suggestion that she could assume some of the duties of a colleague who left the position of front of house duties.  Mr A also requested the complainant to identify any areas where she felt she could be more fully utilised.  The respondent submits that this shows the level of support and encouragement in response to the concerns raised by the complainant.

The complainant commenced a period of sick leave on 30/11/2020 and the complainant’s manger, Mr A replied to her e mail that she should “never be concerned about work … your health/family first.  Get well and focus on you”.  The complainant contacted her manager to advise him that her sick leave had been extended and he replied “Family first ... to hell with everything else!  No explanations ever needed or expected”.

The complainant submitted a letter of resignation to her manager and HR department on 14/12/2020 stating that this resignation would take place with immediate effect.  The HR Business Advisor contacted the complainant and outlined that she was not aware of the complainant’s concerns.  She was asked to reconsider her decision.

The respondent refutes the complainant’s assertion that she was advised by her manager that he did not want her to send any communication to HR in relation to her issues.  This assertion is not credible.  The respondent also refutes the complainant’s submission that she was “fobbed off” by Mr A.  The content and tone of the e mails sent by Mr A are evidence that this is without foundation.  The respondent feels that the complainant refused to acknowledge the onset of the pandemic and the impact of the Government imposed restrictions on workplaces. The respondent also refutes the complaints assertion that Ms R had “taken over” her role.  Such an assertion ignores the fact that she was advised that Ms R’s tenure would cease and that as the complainant had requested to work from home there were some parts of the role that required on-site presence.  The complainant was asked to take on other duties and she ignores the fact that this flexibility, which often included undertaking duties previously done by more junior staff, was required by all employees including the complainant’s manger.

The complainant’s Manager, Mr A, gave evidence.  He outlined to the hearing his educational qualifications and confirmed that he has worked for the respondent since October 2019.  He had no previous interaction with the complainant.  His interaction with the complainant commenced on her planned return from maternity leave in September 2020.  Mr A gave evidence in relation to the overall structure in its worldwide operation and give an overview of the Dublin office size and functions.  The Dublin office is the head office and is the central office for the company.  All corporate functions including finance and leadership are based there.  Mr A outlined the role of the office and facilities manager and explained the rationale in moving to a model whereby these roles would be adjusted from an administrative task-based role and develop a model with a more strategic focus.  There were a number of advantages to this model and principally he would have a team that would have a more global team with a more global and strategic view.  Mr A gave evidence in relation to the impact of COVID-19 on the business.  They felt the impact from the end of January 2020.  This required an incident management process which was modelled on one used in one of their major manufacturing plants.    From mid-March 2020 employees had to work from home.  There were additional pressures resulting from the regulatory responses in each of the countries in which they had operations.  They expected this to continue to the end of 2020.  There was a significant impact on the Dublin office as this was the headquarters for the organisation.  Mr A provided details of the cover while the complainant was on maternity leave.  The person who was providing the cover left and this was replaced with an agency person.  This person was responsible for working with the various agencies to plan what the position was in relation to the organisations COVID-19 response in the Dublin office.  This involved a risk assessment process and training.  Mr A described the level of engagement which was required with the health regulation authorities as “intense and complex”.  The guidelines were constantly changing, and he outlined examples of deep cleaning, sanitisation, rules regarding egress and food deliveries.

There was a decision made to engage the services of a service provider to provide the required services and this would be managed by the Global Workforce Manager.

Mr A outlined his engagement with the complainant on her return from maternity leave.  He cleared this contact with the HR department.  He had heard good things about the complainant and felt that she would be ideally suited to the role of Global Workforce Manager.  He had a call with the complainant on 15th September 2020.  He felt that there was good engagement with the complainant on this call and he felt that he was going to have a good team.  He outlined his plans for the change to the complainant’s role and felt that she would evolve into it.  Mr A was asked about the “Family First” policy in place.  He said that this was always his philosophy and that in any role he was in he was a strong advocate of this policy.  The COVID-19 pandemic was one of the most challenging incident that he had to deal with in his 42 years working. 

Mr A outlined that he discussed his family first approach in his first call with the complainant.  Some office presence would be required.  The complainant was very welcoming of this approach.  In relation to the complainant’s return Mr A explained that his approach was to provide her with a document which outlined how things were being done and understand the current situation.  He believed that this document was helpful, and he did not agree with the complainant’s view that it was no use.  He was satisfied with the handover process despite the challenges of COVID-19.  Mr A was asked to outline the rationale behind keeping an agency worker on after the complainant returned from maternity leave.  He explained that he got approval to keep this person on for a while in order to provide cover for others and it would ease the complainant back into work. He was mindful that the COVID-19 situation could get worse and this person had the health and safety expertise in relation to the respondent’s COVID-19 response in the Dublin office.  This was a critical consideration as the Dublin office had key functions in terms of the wider organisation.  The decision was not related to the return of the complainant from maternity leave.  Mr A was asked how he would respond to the complainant’s evidence that she felt excluded from her role.  He did not recall this being raised with him in any of the calls he had with the complainant.  He described the complainant as a doer and if she had raised any concern with him he would have followed it up. Mr A also provided evidence in relation to the process involved in changing vendors and did not think that it was accurate to say that the contract worker had a conflict of interest in this process. Mr A also denied that he ever told that he ever told the complainant not to send any issues to the HR department.  Mr A was taken through various e mails which were exchanged between him and the complainant.  The e mail sent by the complainant on 25/11/2020 in which she outlined that she felt underutilized and she also sought clarity on the proposed changes to her title and duties.  Mr A outlined that this e mail was unsolicited, and he was surprised that the complainant felt this way.  He never got any sense that she felt like this during any of their meetings. In his reply Mr A acknowledged that many employees and their direct reports, felt like the complainant did.  There was a significant amount of work done to get the workplace ready for the return to work prior to the complainant returning from maternity leave.

Mr A confirmed in the e mail what he wanted the complainant to focus on.  Firstly, review the work done in relation to the Dublin office and become familiar with this and secondly to focus on creating the “future of the workplace and building a rapport with your global teammates”.  In summary he wanted the complainant to focus on the new role and the duties and responsibilities associated with it.  In relation to the complainant’s view that she was underutilized Mr A made a suggestion that the she consider looking at a gap in the service as an employee had left and she could analyse that role and see if she could identify opportunities.  This was not intended as a “demotion” as described by the complainant but part of the plan where everyone was helping out in any way they could. He also asked the complainant to submit any ideas on how she could be more utilized.

Mr A confirmed that the proposed changes to the complainant’s role and title were in train and due to take place in the new year.  He emphasised that it was not a case of “if” but rather “when” these would be put in place.   In that context Mr A confirmed that the complainant returned to the role she had prior to going on maternity leave and the changes she encountered were as a result of the impact of COVID-19 on the workplace.  The same changes affected every employee and at every level within the company.

Under cross examination Mr A confirmed the role of the Dublin office and that the culture was “local” to each site.  He denied that there was any change to the complainant’s terms and conditions on her return.  It was incorrect to say that her role was taken over by the agency worker.  Mr A confirmed the dates the agency worker was engaged and the extension of her contract.  Mr A outlined that the complainant would be undertaking a role which was an upgrade, and this would be confirmed in the new year.  The delay in confirming this was because he was waiting on the HR and Legal functions to revert to him.  Mr A was asked to confirm his understanding of the Employment Equality Act in relation to the complainant returning from maternity leave.  He confirmed his understanding that the complainant was entitled to return to the same role she was in prior to maternity leave.  He confirmed that she returned to her original role of Office and Facilities Manager.  Mr A was asked if the handover document was sufficient in terms of outlining the duties the complainant was required to undertake.  He confirmed that it was and that many of the protocols required for the return to work had been put in place.  Mr A was taken through the various tasks associated with the role of the complainant and the tasks as envisaged in the new role.  The job descriptions for both roles were analysed during cross examination and it was put to Mr A that there was very little difference in both.  Mr A confirmed that while there was some overlap in terms of the duties the significance of this upgraded role was that it had a remit to concentrate on the future of the workplace and within a structure that had now had a global focus,

Mr A on redirection confirmed that the agency worker was not an employee of the respondent.  He also confirmed that the complainant returned for a total of 87 days and she was on sick leave for the last 16 days.  This meant that she was at work for a total of 71 days.  Mr A provided examples of where there was flexibility shown to the complainant in relation to matters other than COVID-19 related.  Mr A had weekly 1:1 meetings with the complainant.

The respondent made a preliminary application to have the decision in this case anonymised.  This was based on reputational considerations by the respondent.  The complainant’s representative objected to this as it was the complainant’s wish to have the respondent named.

In consideration of this matter I do not accept that the reputational argument is of sufficient weight to warrant anonymisation.  I have therefore decided that the parties will be named in this decision.

This is a complaint under the Employment Equality Act that the complainant was discriminated against by the respondent on the grounds of gender; specifically, the complainant is alleging discriminatory treatment in relation to her pregnancy and that she was discriminatorily dismissed from her employment.

The Employment Equality Act, Section 85a(1) provide as follows:

“(1) where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary”.

In order to demonstrate that the complainant has received less favourable treatment and that the less favourable treatment arouse from her age, gender, civil status religion and/or race, the complainant must first establish a prima facie case of discrimination.  Prima facia has been held in the Labour Court in Rotunda Hospital v Gleeson [DDE003/200] to be:

“Evidence which in the absence of any contradictory evidence by the employer would lead any reasonable person to conclude that discrimination has probably occurred”.

The respondent notes that this requires a complainant has to not only establish the primary facts upon which he or she will seek to rely but also that those facts are of sufficient significance to raise an inference of discrimination.  The Labour Court in Southern Health Board v Mitchell (2001) E.L.R. 201 held:

“The first requirement … is that the claimant must “establish facts” from which it may be presumed that the principle of equal treatment has not been applied to them.  This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.

It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment”.

In Cork City Council v McCarthy (2008) EDA0821 the Labour Court also stated:

“The type or range of facts which may be relied upon by a complainant can vary significantly from case to case.  The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination.  The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference or presumption contended for can properly be drawn from those facts.  This entails a consideration of the range of conclusions which may be appropriately drawn to explain a particular fact or a set of facts which are proved in evidence”.

In Melbury Developments Ltd v Valpeters [2010] ELR 64 the Labour Court warned that “mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”.

The complainant contends that she has been discriminated against on the basis of her family status and gender.  She submitted her complainant to the Workplace Relations Commission on 21/03/2021.  The Act sets out that in order for discrimination to have occurred there must be a causal relationship between the discriminatory ground, in this case the family status and gender, and the less favourable treatment she claims to have received.

The evidence proffered by the complainant was that when she returned from maternity leave she felt excluded from her role and the contract worker covering her role was retained in the complainant’s view that “my role had effectively been taken over by my maternity cover, who appeared to be very busy”.

The respondent submits that there were significant changes required in the workplace as a result of the COVID-19 pandemic.  As part of a reorganisation the complainant after her return would transition to an enhanced role with the organisation.  Her return to the workplace was supported at all times by her manager. It is clear that the working arrangements for all of the respondent’s employees were attributable to the requirement to adapt to the COVID-19 pandemic.  These changes were not specifically intended for the complainant.

As set out previously the Labour Court in Southern Health Board v Mitchell (2001) E.L.R. 201 held that it is for the complainant to establish facts from which it may be presumed that the principle of equal treatment has not been applied to them.  The fact of the matter in this case is that there are no facts that the complainant has given that would create a presumption that discrimination of any type occurred.  There are no facts which any of the changes which were in place when she returned from maternity leave were linked to her family status and gender.  I find that the complainant has not met the requirements to establish a prima facia case of discrimination and I cannot uphold her complaint.

Based on the reasoning outlined above, I find that pursuant to Section 79)6) of the Act the complainant has not made out a prima facia case that she was subjected to discriminatory treatment. I find that the complainant was not discriminated against.

I find that the complaint made pursuant to Section 77 of the Employment Equality Act, 1998 is not well founded and the complaint fails.

Maternity benefit.  Discrimination.  Burden of Proof