Complainant

Respondent

Parties

Courtney  Geoghegan

Kidspace Rathcoole

Representatives

  Ms Ailbhe Lawless BL

 Ms Fiona Gibbons HR Manager

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 79 of the Employment Equality Acts, 1998 - 2015

CA-00040841-001

06/11/2020

The complainant commenced employment with the respondent on the 26th of  February 2020.

The HR manager on the 5th of March 2020 was informed by the complainant that she was pregnant.

On the 14th of March 2020 the respondent closed due to COVID-19 Public Health regulations and all staff were placed on temporary layoff.

In mid-June 2020 The Government announced that play centres could reopen; however, with a significant reduction in capacity in the playcentre.

Arising from the reduced capacity; the playcentre reassessed its labour requirements and significantly reduced its staff headcount. The consequence of this action was to directly impact on the complainant.

However, the complainant states that her fixed term contract had expired in any case on the 19th of April 2020 and her contract rolled over. She maintains that other employees on fixed term contracts were kept on. She believes that her role was advertised on the 6th of August 2020 and  backfilled. The complainant believes that her employer clearly wanted a new staff member to take her place as she was pregnant and that limited her ability to carry out certain tasks.

The complainant states that her role was advertised in August 2020; clearly indicating that the respondent wanted to recruit a new staff member. She claims that her work duties had to modified arising from a risk assessment; following on from her notification to her employer that she was pregnant. She accepts that others were placed on lay-off and eventually let go in June 2020. However, others on fixed term contracts were also kept on and crucially the role advertised by the play centre was substantially the role that she had previously held. She believes that she was selected because she was pregnant and that constitutes discrimination.

The play centre like many others faced huge uncertainty in June 2020. Based on the very significant reduction in capacity determined by public health regulations; they were forced to restructure and reduce the number of employees at the centre. This meant that employees with a few months service were let go first. The complainant was among 5 temporary contract employees let go solely based on their relative short service. While other employees on fixed term contracts were kept on; they had significantly longer service of the order of 12 months.

The role advertised in August 2020 was for a cook. The complainant while she helped in the kitchen by collecting orders, never was the cook or employed to be a cook. This was not her position.

On the 1st April 2019 the complainant applies for the position of Play Centre/Catering Assistant.

She also applied for another position, Cook and Café Assistant on the 20th of February 2020; however, that role had been filled.

She was called for interview on the 21st of February 2020 for the Play Centre/Catering Assistant role. After attending for a short trial on the 22nd of February 2020 she was offered the role.

The contract states that it was a temporary contract, fixed until 19th of April 2020.

The pandemic created very significant challenges for centres that looked after young children. All staff from mid-March 2020 were on lay-off and communication between management and staff was challenging. They were not normal times.

All employees who had been employed at the date of lay-off had been receiving Whats App messages, including about the reopening of the centre in June. However, the exact numbers that could be re-employed very much depended on public health regulations and social distancing compliance.

It is also true that an expectation of a rollover of the contract existed prior to lock-down. Technically the contract expired on the 19th of April 2020. While the complainant relies on the fact that communication continued with her post that date; in itself that does mean that her contract continued. A fixed term contact places the employee on notice that the contract will be ending on a specified date. In this case that date had elapsed.  This fact does not mean that the allegation of discrimination can be dismissed; it depends on how others were treated. The question arises was the complainant treated less favourably that other fixed term employees with the same length of service? The employer states categorically that she was treated exactly the same as others who had the same serviced. In fact 5 employees with the same short service was also let go.

The other employees who were retained commenced on longer fixed term contracts of 12 months duration. The respondent states that service was the only determining factor in keeping those employees on the books. They all had more service than those who were not re-employed.

The position of Cook was advertised in August 2020; however, that was not the role previously held by the complainant. They are very different roles. While it is accepted that there is an overlap around some tasks such as using the micro-wave; the roles are very different. The complainant was never hired as cook.

In such a case the burden of proof is on employer to show that they didn’t discriminate against the complainant. The complainant prima facie has presented facts that are required to be rebutted by the employer:

In Equality in the Workplace [ Bloomsbury Professional 1st ed 2015] Purdy writes:

[11.40]

Notwithstanding this absolute unconditional right of a woman not to be made redundant during a period of protective leave, this right does not extend to the pregnancy as a whole. However, employers have a very high burden of proof to meet, in that they must prove that the redundancy arose for exceptional reasons unconnected to the pregnancy.

[11.41]

This matter was given very significant consideration in McGarvey v Intrum Justitia. 53 The Labour Court, in following the ECJ case of Brown v Rentokil, 54 went on to hold that the entire period of pregnancy and maternity leave constitutes a special protected period. In this instance, as the employer knew the complainant was pregnant, the Equality Officer found a prima facie case was established which then shifted the onus of proof to the employer to prove that the redundancy was for exceptional reasons – unconnected with the complainant’s gender or family status.

To justify the selection of the complainant, the employer submitted a matrix of ten criteria that were weighted, against which the complainant was scored. The complainant received the lowest score in the finance department and accordingly was selected for redundancy. There were a number of other things of interest, most notably the fact that the finance manager who did the scoring did admit to asking the complainant whether she would be flexible enough for the role, and the complainant alleged that she had been asked several times during her employment about her level of commitment when she was forced to take time off for family reasons.

The Equality Officer found that the method of choosing staff for redundancy was not sufficiently objective or transparent. There were no objective assessments, nor was input sought from immediate line managers.

It is clear from this that prior to making anyone redundant, but particularly where a pregnant woman is involved, there must be a transparent process, which is capable of being justified on objective grounds.

Clearly the Pandemic created very significant challenges around good staff communication. However, on the facts of this case, selection to be re-employed; as the contract had in fact ended on the 19th of April 2021; was solely based on service. Those who were re-employed had significantly more service than the complainant who only started in her job in late February 2020. The complainant along with all employees was on lay-off from the 14th of March 2020. During the period of lay-off her contract ended. In the past short-term contracts were rolled over. However due to the restrictions placed on the business by the pandemic public health regulations it was not possible to open the centre with the same number of children and consequently that impacted on the manning levels and the numbers that could be re-employed. The selection criterion used was  objective and solely based on service.

I am also satisfied that the role advertised in August 2020 was not the role of Play Centre/Catering Assistant; in fact it was for the position of Cook and Café Assistant. These two roles have some overlap; however, in substance they are two different and distinct jobs and the position advertised was not the role held by the complainant during her brief time with the centre.

Section 85 A of the Employment Equality Act, 1998 as amended states:

85A. — (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.

It can be assumed from the  primary facts as presented at the hearing that the complainant has met the threshold that required the employer to rebut the presumption of discrimination. I am satisfied based on the evidence of the HR Manager and of the centre supervisor that the selection criterion used was fair and objective. I am also satisfied the position advertised in August 2020 was not held previously by the complainant. As the employer has rebutted the presumption  of discrimination; I determine that the complainant was not discriminated against by the employer arising from being pregnant.

CA-00040841-001

Clearly the Pandemic created very significant challenges around good staff communication. However, on the facts of this case, selection to be re-employed; as the contract had in fact ended on the 19th of April 2021; was solely based on service. Those who were re-employed had significantly more service than the complainant who only started in her job in late February 2020; she along with all employees were on lay-off from the 14th of March 2020. The selection criterion used was  objective and based on service.

I am also satisfied that the role advertised in August 2020 was not the role of Play Centre/Catering Assistant; in fact it was for the position of Cook and Café Assistant. These roles have some overlap; however, in substance they are two different and distinct jobs and the position advertised was not the role held by the complainant.

Section 85 A of the Employment Equality Act, 1998 as amended states:

85A. — (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.

It can be assumed from the  primary facts as presented at the hearing that the complainant has met the threshold that required the employer to rebut the presumption of discrimination. I am satisfied based on the evidence of the HR Manager and of the centre supervisor that the selection criterion used was fair and objective. I am also satisfied the position advertised in August 2020 was not held previously by the complainant. As the employer has rebutted the presumption  of discrimination; I determine that the complainant was not discriminated against by the employer arising from being pregnant.

Discrimination -Pregnancy-Selection for re-employment