Complainant

Respondent

Parties

Carol  Connolly

Ryans Solicitors Llp

Representatives

  Self

Mairead McKenna BL, instructed by Ryans Solicitors Llp

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00043288-001

29/03/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00043288-002

29/03/2021

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00043288-003

29/03/2021

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

CA-00043288-004

29/03/2021

Complaint seeking adjudication by the Workplace Relations Commission under Section 16 of the Protection of Employees (Part-Time Work) Act, 2001

CA-00043288-005

29/03/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00043442-001

07/04/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00043442-002

07/04/2021

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00043442-003

07/04/2021

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

CA-00043442-004

07/04/2021

Complaint seeking adjudication by the Workplace Relations Commission under Section 16 of the Protection of Employees (Part-Time Work) Act, 2001

CA-00043442-005

07/04/2021

The complainant was employed by the respondent as a legal secretary from 07/08/2012 until she resigned on 15/03/2021.  It is the complainant’s position that she was constructively dismissed, was discriminated against and had her rights under the Terms of Employment (Information) Act, 1994, and Organisation of Working Time Act, 1977 and The Protection of Employees (Part-Time Work) Act, 2001 breached.  The respondent denies that the complainant was constructively dismissed or that any of her employment rights as cited in her complaints were breached.  The complainant worked part-time (21 hours p.w.) and was paid €2,021.93 gross per month (Nett: €1,7778.36).

The complainant submitted a total of five complaints as follows: Terms and conditions of employment:  The complainant submitted that she did not receive details of her terms and conditions of employment until such time as she requested those.  There were issued to her on 02/02/2021.

Hours of Work: The complainant believes that she did not receive her full annual leave entitlement.  She requested details of the leave taken from the respondent but did not receive those.  She was due a total of 12 days and 8 were taken while a further three were paid at a reduced daily rate.  The complainant also submitted that she was entitled to a day when the respondent closed the firm on 23/12/2020.

Unfair Dismissal:  The complainant worked as a legal secretary for the respondent. She worked Monday, Wednesday and Thursday from 8.00am until 4.00pm.  She was one of three legal secretaries working for the respondent.  During the COVID-19 lockdown she was working 7.30am – 3.45pm.  On 04/01/2021 the complainant asked one of the respondents’ partners if she could work from home.  This was immediately refused, and the complainant took issue with the fact that a full-time secretary was allowed work from home.  The complainant requested to work from home as she needed to be present for her two children who at that time were home schooling.  The complainant submits that she was told that if she was facilitated with her request then the other part time secretary would have to be let go.  The complainant got upset at this suggestion.  On 07/01/2021 a meeting with both of the respondent’s partners took place.  It was submitted by the complainant that this brief meeting would not resolve matters.  The complainant was informed by one of the partners via e mail about the PUP payment.  The complainant was not happy that she was the only secretary that was given the electronic link to the PUP payment and asked the partner to explain this.  She was told to look after herself.  The partner then called to her office and following this interaction the complainant felt that she had no option but to leave the office and advised the partner of this.  She received a text message from the other partner that evening.  There was considerable exchange of e mails between the complainant and a partner in the firm. This exchange related to the complainant’s grievances and annual leave clarification.  The complainant in her evidence stated that the key issue for her was the refusal of the respondent to facilitate her working from home despite the fact that the other part time legal secretary was allowed to do so.  When the complainant received a copy of her terms and conditions of employment on 04/02/21 she raised a concern about the hours of work which were changed from her pre COVID-19 arrangement to a 9.00am to 5.00pm.  It was the complainant’s evidence that this was the “final straw” for her and she felt that if she returned to the office this would indicate that she had accepted her revised terms and conditions.  The complainant then gave notice of her intention to resign on 12/02/2021 and this took effect from 15/03/2021.  It was the complainant’s evidence that she had no option but to resign and confirmed at the hearing that she did not utilise the grievance policy as this was a new policy and the respondent had not adhered to this policy when dealing with her grievance.

The complainant confirmed that she remained on PUP payment until the end of 2021 and at that stage her husband changed employment status from being self employed to taking up full time employment to facilitate the complainant to remain at home.  The complainant provided some evidence to the hearing of a small number of job applications.

Discrimination: The complainant submits that she was discriminated against by the respondent in relation to training, age and family status.  In relation to training a legal secretary course was offered to the full-time employee and not offered to her in her part time role.  This was never discussed with her formally.  When she raised an issue in relation to this the respondent then offered to facilitate her on the next course.  The complainant submitted that the full-time secretary was younger than her and was shown more preference by the respondent in that she was allowed to work from home.  It is the complainant’ position that she was also discriminated against on the grounds of family status which involved the care of school going children.  Her request to work from home was linked to her family status.  The complainant submitted that the other person also had a family, but her children were grown up.  There was no valid reason proffered by the respondent as to why she could not carry out her duties from home.

Part time work:  The complainant submits that she was treated less favourably than the full-time comparator.  The full-time comparator was allowed to work from home while she was not.  The respondent failed to provide a reasonable explanation why they would not facilitate this.  She was allowed work from home during the first lockdown.

It was submitted on behalf of the respondent that that apart from the concessions which were confirmed at the hearing all the other complaints by the complainant are denied.

Terms and Conditions of Employment:  The respondent provided the complainant with a copy of her terms and conditions of employment on 02/02/2021.  This was in response to a query from the complainant in relation to same.  The respondent acknowledges that the complainant was not provided with these terms and conditions prior to 02/02/2021.  The reason for this was that the respondent firm developed from a merger of existing law firms and the complainant was employed by one of the firms preceding the merger.  The respondent submits that the complainant was fully aware of her terms and conditions and no issues were raised prior to the complaints which were the subject of this hearing.

Hours of work: At the hearing the respondent confirmed that it was willing to concede payment for one day and to rectify the discrepancy in the complainant’s daily rate which was applied to three days.  The respondent accepts that the daily rate should be €155.53 and not €93.32.  The balance due for three days is €186.63 and a further €155.53 is due for the other day.

Unfair Dismissal:  The respondent denies that the complainant was unfairly dismissed.  The complainant submitted her resignation on 15/2/2021 of her own free will and in circumstances where there was no fundamental breach of the complainant’s contract of employment or unreasonable behaviour on the part of the respondent. It is the respondent’s position that the complainant was informed that she was required to attend work following the reimposition of level 5 restrictions in January 2021.  During the first lockdown the complainant was fully paid while at home but did not work.  It was submitted on behalf of the respondent that she was required in the office due to her experience, complexity of the role and particularly the business needs.  The respondent made a number of suggestions to facilitate the complainant including changing her working hours to work afternoons, change her work pattern and was also offered a car parking space.  The option of the PUP payment was also mentioned to the complainant as was a temporary period of unpaid leave.  It is the respondent’s position that the complainant refused to discuss or try any of the options and she continued to insist that she work from home.  During this time the respondent provided detailed responses to the complainant.  The respondent submits that the complainant did not exhaust the internal grievance procedures and also refused the offer of a third-party intervention to assist in resolving the matter.

It was submitted on behalf of the respondent that in cases of alleged constructive dismissal the employee must establish that the resignation was not voluntary and was caused by the intolerable or unreasonable actions of her employer.

It was submitted on behalf of the respondent that the complainant never intended to return to work and that she made a reference to this in an e mail sent to the respondent on 15/01/2021:  “I am left in a position where I don’t see how I can continue to work in the office and also that Paddy wouldn’t want me as an employee there.  All I wanted was to be treated equally.  I would reiterate I was not looking for preferential treatment, but I have been made feel like I am a nuisance”.  It was submitted on behalf of the respondent that they had huge respect for the complainant and her ability as a legal secretary.  Her work required her to attend the office, but the complainant does not accept the explanations offered.

It was submitted on behalf of the respondent that the complainant has failed to prove that she was constructively dismissed and refused to accept mediation or a WRC referral.  She left work on 13/01/2021 and never returned.  The complainant in her evidence confirmed that the issue was her terms and conditions, and, in her evidence, she confirmed that she did not raise a formal grievance in relation to this matter.  There was no reason for the complainant to consider herself constructively dismissed and the complainant has suffered no financial loss as she remained on PUP until the end of 2021 and was not available for work.  The respondent submitted that the changes to her circumstances since then meant that she was not looking for work.

As the complainant has not discharged the burden of proof the respondent representative confirmed that it was not necessary for the respondent to provide any witnesses.

Discrimination: The respondent denies that the complainant was a victim of discrimination on grounds of her family status, age, training or her status as a part time worker.  In relation to training opportunities the respondent confirms that the training was discussed with the complainant over the years.  It was offered and reoffered at various stages.  It was submitted on behalf of the respondent that such was the level of competence that the complainant had that the course might be too basic for her.  The respondent was always willing to fund and support the complainant taking the course.  It was only when another employee was sponsored on the course that the complainant reactivated her interest.  The respondent does not accept that the age of the complainant had any influence on the decision to refuse her request to work from home.  The respondent accepts that there are age differences in the legal secretaries ages.  The fact remains that the work being done by the complainant could not be done from home and this is linked to the business needs and the level of competence required.  It has no links with the complainant’s age and/or family status.  It was submitted on behalf of the respondent that the complainant was never told that the reason she could not work from home was linked to her children.  The complainant does not accept that the work being done by the full-time person could be done from home as they were entirely different to the more complex role of the complainant.

Part-time work:  The respondent confirmed at the hearing that the only reason the complainant was required to attend work was because she was an important and valuable member of the office support staff and her ability and competence were essential to the running of the business.  There was no discrimination in relation to her status as a part time worker.

The complainant in this case submitted a total of five complaints.

CA-0004328-001: Terms and conditions:

This is a complaint pursuant to the Terms of Employment (Information) Act, 1994.   The Complainant submits that she did not receive a document which complies with Section 3 of the Act.  Section 3(1A) of the Terms of Employment (Information) Act, 1994 states that-

(1A) Without prejudice to subsection (1), an employer shall, not later than 5 days after the commencement of an employee’ s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’ s employment, that is to say: 

(a) the full names of the employer and the employee; 

(b) the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act 2014); 

(c) in the case of a temporary contract of employment, the expected duration thereof or, if the contract of employment is for a fixed term, the date on which the contract expires; 

(d) the rate or method of calculation of the employee’s remuneration and the pay reference period for the purposes of the National Minimum Wage Act 2000; 

(e) the number of hours which the employer reasonably expects the employee to work — 

(i) per normal working day, and 

(ii) per normal working week.

Section 3 of the Terms of Employment (Information) Act 1994 provides for further details to be given to an employee not later than two months after the commencement of the employee’s employment.

The Terms of Employment (information) Act, 1994 implements an EU directive and applies to all persons working under a contract of employment or apprenticeship (whether on a fulltime or part time basis).  It includes persons working through an employment agency where the party remunerating is responsible for the provision of the said statement of terms.  The Act also provides that an employer must notify the employee of any changes in the particulars already detailed in the statement of terms.

The complainant was issued with a contract which provided all the details when she requested this. I accept that the issue arose due to the merger which took place and the respondent undertook to rectify the matter at that stage.  There is an onus on the Respondent to provide an employee with all details which are fully compliant with the Act and to and to retain such a document for at least a year after the employment ends.

While some of these terms required may be viewed as trivial and technical in nature it is well established by the Labour Court that a failure to comply at all with Section 3 of the Act can be reduced to a trivial or technical matter.  In the case of TED2013 the Labour Court stated: “If this Court were to accept the contention that a total failure to comply with Section 3 of the Act was a breach of such little significance as to allow the application of the de-minimus rule, the Court would, in effect, be allowing that Section 3 of the Act could, as a general proposition, be ignored unless a worker could show a detriment arising therefrom.  The Court does not accept that such a contention can be drawn”.

I find that there was a contravention of the Act during the relevant period.  In circumstances where I consider the complaint to be well founded, I may require a statement to be provided.  In addition, I am entitled to direct a payment of compensation up to the value of four weeks remuneration such that is just and equitable in all the circumstances.  Given the circumstances of this case there is no longer a requirement to provide the terms.  I am guided by the Labour Court in Morehampton Foods Ltd v Gibbons TED 18/2017, where the Court confirmed that a failure to comply with s.3 of the Act “constitutes a single contravention of the Act” and that it was not the case that every omission from a statement mandated by s.3 constituted a stand-alone infringement to which the statutory limit on compensation should be separately applied.  Having considered the evidence in this case I believe that the full compensatory limit under section 7(2) should not be applied.  I therefore order that the Respondent pay the Complainant the sum of €933.18 representing two week’s remuneration which I consider to be a just and equitable sum having regard to all the circumstances in this case.  For the avoidance of doubt this amount is calculated on the agreed daily rate of €155.53 and on the basis that the complainant worked three days per week.

CA-0004328-002: Hours of Work

This is a complaint pursuant to Section 27 of the Organisation of Working Time Act, 1997.  The complainant submitted that she did not receive her full annual leave entitlement.  At the hearing the complainant confirmed that she was due a total of 12 days and 8 were taken while a further three were paid at a reduced daily rate.  The complainant also submitted that she was entitled to a day when the respondent closed the firm on 23/12/2020.

At the hearing the respondent clarified that the cognisable period to be considered under the Act was six months from the date of 29/03/2021.  The respondent confirmed that it was willing to concede payment for one day and to rectify the discrepancy in the complainant’s daily rate which was applied to three days.  The respondent accepts that the daily rate should be €155.53 and the balance due for three days is €186.63.  The total amount due to the complainant is therefore €342.16.

CA-0004328-003: Unfair Dismissal

The complainant is seeking compensation arising from her constructive dismissal from her employment with the respondent.

As the Adjudication Officer I am obliged to establish if Section 1(b) of the Act of 1977 operates to validate this complaint of constructive dismissal.  Section 1(b) states:

“the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate his contract of employment without giving prior notice of the termination to the employer.”

Considering the statutory definition contained in Section 1 of the Act of 1977 as amended, and the authoritative principles adopted by the relevant fora and the Courts, the onus lies with the complainant to demonstrate that her resignation was justified.

In supporting her decision to terminate her employment the complainant will have to prove that the circumstances of her dismissal met the tests as set out by Lord Denning MR in Western Excavating (ECC) v Sharp (1978) IRL 332, and described as follows:

“conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract then the employee is entitles to treat himself discharged from any further performance.”

And the reasonableness test which was expressed in the following terms:

“an employer who conducts himself or his affairs so unreasonably that the employee cannot be expected to put up with it any longer, the employee is justified in leaving.”

Both of these tests have been followed by various Irish authorities.

In relation to breach of the complainant’s contract of employment there was no evidence that any such breach occurred.  On the contrary the respondent made a number of suggestions which were not seriously considered by the complainant.  Significantly, no formal grievance was raised by the complainant.   It is expected that an employee will exhaust internal procedures prior to resigning.  This requirement featured in many Employment Appeals Tribunal decisions and subsequently in WRC and Labour Court.  This was particularly well expressed in Conway v Ulster Bank (UD474/1981) where the Tribunal held that “the claimant did not act reasonably in resigning without first having substantially utilised the grievance procedure to attempt to remedy her complaints.  An elaborate grievance procedure existed but the claimant did not use it.  It is not for the Tribunal to say whether using this procedure would have produced a decision more favourable to her, but it is possible”.  In another decision (Travers v MBNA Ireland Ltd (UD720/2006)) the Tribunal emphasised the same point: “the claimant did not exhaust the grievance procedure made available to him by the respondent and this proves fatal to the claimant’s case … In constructive dismissal cases it is incumbent for a claimant to utilise all internal remedies made available to him unless good cause can be sown that the remedy or appeal process is unfair”.

In examining the conduct of the employer there was evidence that the complainant had an issue with the conduct of the respondent’s partners. While such an issue can be distressing for an employee no grievance was raised by the complainant in relation to her health and safety in the office. The issue involved was not unusual and such matters are regularly resolved through mediation or facilitation process.  This approach was not taken up by the complainant and while I note she had an issue with a person nominated by the respondent she made no attempt to obtain any alternative. 

In reviewing the “reasonableness test” the Supreme Court in Berber V Dunnes Stores [2009] E.L.R. 61 in considering the reasonableness test stated:

“The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.”

There is no doubt that this was a difficult situation for the complainant.  She had worked for the respondent for just over 8 years and as this was a small office environment it required a level of commitment from all parties to resolve matters.

Based on the evidence of the complainant and the authorities cited, I find that the complainant has failed to meet the tests set out in Western Excavating (ECC) v Sharp 91978) IRL 332. 

I do not find that the complaint of constructive dismissal taken under the Unfair Dismissals Act to be well founded.

CA-0004328-004: Discrimination

The complainant alleges that she was discriminated against in relation to access to training, age and family status grounds.

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 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 age and family status.  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 age, and the less favourable treatment she claims to have received.

The evidence proffered by the complainant was that when she was refused to be facilitated with working from home or access to a training course relevant to her role.

The respondent submits that there were changes for all of the respondent’s employees were attributable to the requirement to adapt to the COVID-19 pandemic.  When the various restrictions were reintroduced, the respondent required the complainant to work from the office.  The respondent provided an explanation why another colleague was allowed to work from home, but this was disputed by 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 link the respondent’s position to her family status and age.  I find that the complainant has not met the requirements to establish a prima facia case of discrimination and I cannot uphold her complaint.

CA-0004328-005: Part-Time Work

The complainant submitted that she was treated less favourable that a full-time comparator.  The full-time comparator was allowed to work from home and the complainant was not.  As noted the respondent confirmed at the hearing that the reason the complainant was required to attend work was because she was an important and valuable member of the office support staff and her ability and competence were essential to the running of the business.

The complainant has not established any facts which link the respondent’s position regarding their refusal to facilitate her working from home was linked to her part time status.  The complainant’s role was essential to the business needs and I find that the complainant has not met the requirements to establish a prima facia case of discrimination and I cannot uphold her complaint.

 There was no discrimination in relation to her status as a part time worker.

CA-00043277-001: I find that this complaint is well founded, and I award the complainant the sum of €933.18.

CA-00043277-002: I find that this complaint is well founded, and I award the complainant the sum of €342.16.

CA-00043277-003: I find that this complaint is not well founded. The complainant was not constructively dismissed.

CA-00043277-004: I find this complaint is not well founded and the respondent did not discriminate against the complainant in relation to access to training, age or family status grounds.

CA-00043277-005: I find that this complaint is not well founded, and the complainant was not discriminated against on the basis of her part time status.

Constructive dismissal.  Discrimination.  Part-time status.