Complainant

Respondent

Parties

Eleanor  O' Brien

South Dublin County Partnership CLG

Representatives

James McConnon, B.L.,  Moran & Ryan Solicitors

Fergus Dwyer 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-00040550-001

22/10/2020

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 gave her evidence under oath and the three witnesses for the respondent gave their evidence under affirmation.  Representatives for both parties availed of the opportunity to cross examine the witnesses.

At the outset, the complainant’s representative confirmed that she was not pursuing the victimisation mentioned the complaint form.

Substantive written submissions were received from the complainant on 9 February 2022, respondent submissions were received on 15 February 2022.

The complainant submitted that she was treated less favourably on the gender and family status grounds when the respondent failed to allow her to cut short her career break and return to work.

The complainant sought to return early from her career break as she was pregnant.

The complainant submitted that the respondent failed to honour her contractual maternity top-up payment.  She submitted that she received 13 weeks of a top-up maternity payment but should have been able to avail of more than that if she was allowed to return to work early.

The respondent confirmed that the complainant was not allowed to cut her career break short but submitted that this did not have anything to do with the complainant being pregnant but rather that another employee was contracted to fill the complainant’s role for a minimum of twelve months.

The respondent submitted that the complainant willingly applied for a career break for a twelve-month period under the terms of the career break agreement.  The agreement outlined that her remuneration and all other benefits would cease for the twelve-month duration.

The respondent submitted that the complainant sought to cut her career break short after five months.

The respondent submitted that the complainant has not established the existence of less favourable treatment and has not established a difference of treatment based upon on any of the protected grounds.

The respondent also submitted that no reference to a contractual maternity payment was made in the complaint form but has only recently been made.

The initial complaint form from the complainant simply referred to the refusal on the part of the respondent to permit the complainant to cease her career break early.  No reference was made up until the submission of 9 February 2022 to a contractual top-up maternity payment. Having considered this aspect of the complaint, I find that these allegations were not made within the statutory time frame envisaged by the Acts and are accordingly outside the scope of this complaint.

In written submissions, the complainant noted Section 85A(1) of the Employment Equality Act 1998 – 2021.  Section 85A(1) states that

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 its written submissions the respondent noted the Labour Court case of Southern Health Board v Mitchell, DEE011, [2001] ELR 201 where the Court stated: “The first requirement is that the Complainant 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 Complainant 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 those 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”.

The respondent also noted the Labour Court’s conclusions on the discharge of the evidential burden in Margetts v Graham Anthony & Company Limited, EDA038, where the Court noted as follows: “The mere fact that the Complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The Complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.”

The respondent submitted that it is only when this burden has been satisfied that the burden of proof shifts to the respondent to rebut the inference of discrimination.

Section 6 of the Employment Equality Act 1998 – 2021 includes the following:

(1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where —

(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the ‘discriminatory grounds’) which —

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(b) a person who is associated with another person —

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination. 

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

(a) that one is a woman and the other is a man (in this Act referred to as the gender ground”),

 …

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

…

(2A) Without prejudice to the generality of subsections (1) and (2), discrimination on the gender ground shall be taken to occur where, on a ground related to her pregnancy or maternity leave, a woman employee is treated, contrary to any statutory requirement, less favourably than another employee is, has been or would be treated.

The respondent submitted oral testimony in relation to a male employee in one of the constituent organisations (the respondent subsumed a number of earlier companies by way of Transfer of Undertakings).  In the earlier case, the male employee was denied the request to return early from a career break as the respondent had already hired someone for the duration of the career break.

In the instant case, uncontested oral evidence was given that the respondent had given a contract to one of its employees to act-up into the complainant’s role for the duration of her career break, a minimum of twelve months.  In addition, testimony was also provided that consequential acting up contracts were given for that employee’s role too.

The complainant suggested that the instant case was similar to the case of Ms Colleen Harrington -v- Board of Management, Scoil Chriost Ri and Department of Education and Science (DEC-E2005-022) wherein the Equality Officer found that discrimination took place when the school refused to cut the complainant’s career break short.

The respondent noted that although the Harrington case refers to a complainant whose application to withdraw her career break application was refused, at the time of making the application, the complainant in that case had not signed a contract of terms and conditions for the career break, she had not commenced her career break, and no person had been selected and given an undertaking that they would cover the absence period.  The respondent also noted that in the Harrington case, the complainant had indicated to the respondent that if she became pregnant she would be cutting her career break short of cancelling it altogether.

Having considered the foregoing, to oral and written submissions, I am not satisfied that the complainant has established that she was treated less favourably than another employee.  It appears that the complainant is not seeking equal treatment but rather, the complainant seems to be seeking more favourable treatment than other employees.  The respondent provided reasons as to why this request for a career break was refused which have nothing to do with the gender or family status grounds or with the complainant’s maternity.  The complainant is not alleging a breach of a statutory requirement or entitlement. 

In this regard, I find that the complainant has not established facts from which it may be presumed that there has been discrimination against her.  I find that the complainant was not discriminated against.

Having regard to all the circumstances of this complaint and to my findings above, my decision is that the complainant has not established facts from which discrimination may be inferred.

Employment Equality – career break – more favourable treatment – no prima facie case of discrimination established.