ADJ-00030157

Complainant

Respondent

Parties

Niamh  Moloney

Little Treasures Creche & Playschool Limited T/A Little Treasures Creche & Playschool

Representatives

JJ Fitzgerald & Co.

 N/A

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 18 of the Parental Leave Act 1998

CA-00040286-001

07/10/2020

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

CA-00040286-002

07/10/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 30 and 31 of the Maternity Protection Act 1994

CA-00040286-003

07/10/2020

The Complainant commenced employment with the Respondent as a Childcare Assistant on 8 January 2018 and was paid €10 per hour. She stated that she was subjected to discriminatory treatment by the Respondent on gender and family status grounds when the Respondent failed to offer her a similar role on the same terms and conditions that she had prior to going on maternity leave following the completion of her period of leave.

The Complainant went on maternity leave on or about the 9 January 2020 and gave birth on 14 February 2020. She had been working 38 to 40 hours per week prior to this.

Prior to going on maternity leave, the Complainant sought a written assurance that she would be allowed to resume her role in the toddler room following her return because in the past the roles of colleagues were changed after they came back from maternity leave. The Complainant looked to return to work herself on 22 July 2020 and met with Anita O’Dwyer, a Director of the Respondent, in her office on 16 July 2020 and discussed her desire to do so. Ms O’Dwyer informed her that the Respondent had no work for her at that time and stated that all hours for employees would be reduced as a result of the pandemic. Ms O’Dwyer informed the Complainant at the meeting that she could return to work in early September 2020 from 9 am to 3 pm five days per week. She agreed that for the first three weeks it would be on reduced hours (this had been requested by the Complainant as her daughter had been starting in a new school) and that after those initial three weeks, the Complainant would resume her full time work as heretofore.

In August 2020, the Complainant messaged Anita O’Dwyer inquiring as to the exact date of her return to work further to which she received a phone call from Ms O’Dwyer wherein she was told “you stupid f****ing b***ch, I told you I don’t have the hours” and was offered a discretionary relief  position from Tuesdays - Thursdays and work as a cleaner on Mondays and Fridays. The Complainant highlighted in evidence that she would not be guaranteed the relief work as she would only be called in when other staff were unavailable and that the work as a cleaner was entirely different from her previous role. The Complainant stated that this was not acceptable to her and that she had been promised both before she went on maternity leave in January and again in July that she would be allowed to resume her previous role. Anita O’Dwyer informed her that when the position she had before she went on maternity leave was available she would contact her but she was not put back on the roster until after the instant complaint was made to the WRC.

In or about January 2021, the Complainant contacted Ms O’Dwyer stating that she was looking for a reference and Ms O’Dwyer informed her that she would need to resign before a reference would be forthcoming. As a result, the Complainant resigned. On Monday night 1 February 2021, at approximately 10pm, Ms O’Dwyer called to the Complainant’s door when the Complainant and her children were in bed. Ms O’Dwyer demanded that a date be placed on the letter of resignation that had been provided. The Complainant informed Ms O’Dwyer that she could not deal with her at that hour of the night. Ms O’Dwyer’s husband subsequently called to the Complainant and she gave him a letter with a resignation date of 8 February 2021. The Complainant stated that she resigned because she needed a reference in order to obtain further employment. Ms O’Dwyer stated she would get a good reference but in fact as it turned out she got two bad references. Notwithstanding these poor references, the Complainant found alternative employment and began her new role on 1 March 2021 where she is working in a toddler room in a creche.

The Respondent disputed that the Complainant worked 40 hours every week and said that she regularly worked less than this.

Having gone on maternity leave in January 2020, the Complainant was contacted via phone by the Respondent in mid July 2020 in relation to her returning to work and the new Covid guidelines. The Complainant stated that she wouldn't be returning to work until October 2020 because her daughter was starting a new school and she wanted to settle her in and also stated that she could not work until after 9am. All staff were requested to attended a covid course on the 15th of July 2020 but the Complainant chose not to attend

Further to the covid enforced lockdown, the Respondent’s creche re-opened on 20 July 2020 after which it took a few weeks to settle the children in having become very attached to their parents after being at home for so long. As a result, the Respondent was very reluctant to move staff from rooms after their hard work in settling the children in.

In September 2020, the Respondent was in contact numerous times with the Complainant on Whatsapp in relation to returning to work. Specifically, on Sunday September 13th 2020, Friday September 18th 2020, Friday 25th September 2020, Friday 2nd October 2020 and 27th October 2020, the Complainant was offered work on Monday from 8am- 5:30pm, on Tuesday 8am-3pm and on Friday 8am-5:30pm. On Friday October 30th October, Friday 6th November, Saturday 14th of November 2020 and Friday the 20th of November 2020, the Manager sent out the roster on the group Whatsapp with the Complainant’s hours Monday to Thursday 8am to 5:30pm and Friday 8am to 5pm in which there was no response and the Complainant did not turn up for work.

It was asserted that the Complainant was offered part time hours initially as she requested and she did not return to work and she said she was not happy with that, then she was offered fulltime hours as she requested and she still did not return to work.

THE LAW

The Workplace Relations Act 2015 at section 41, in relevant part, provides as follows

(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

 8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.

Discrimination for the purposes of this Act.

6.— (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 insubsection (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 ofparagraph (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”),

(b) that they are of different civil status (in this Act referred to as “the civil status ground”),

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

(d) that they are of different sexual orientation (in this Act referred to as “the sexual orientation ground”),

(e) that one has a different religious belief from the other, or that one has a religious belief and the other has not (in this Act referred to as “the religion ground”),

(f) that they are of different ages, but subject to subsection (3) (in this Act referred to as “the age ground”),

(g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as “the disability ground”),

(h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”),

(i) that one is a member of the Traveller community and the other is not (in this Act referred to as “the Traveller community 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 Burden of Proof

The Equality Act 2004 inserts a new section, 85A, into the Employment Equality Acts 1998 – 2015.

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.

FINDINGS

Preliminary Issue

I note in the first instance that the complaint was referred to the WRC on 7 October 2020 but that the alleged constructive dismissal occurred in February 2021, when the Complainant stated that she was forced to resign from the Respondent to take up employment elsewhere, having been previously been subjected to discriminatory treatment in relation to her intention to return to work. 

Having regard to these facts, I note the decision of the Labour Court in A School v A Worker (EDA 122) where it was held that a Complainant could only rely on alleged acts of discrimination which occurred before the presentation of his or her complaint to the Equality Tribunal for the purpose of seeking redress. Accordingly, I can only deal with the allegations of discrimination that occurred within the six month period prescribed at section 41 of the Workplace Relations Act, outlined above, namely in the six month period prior to the 7 October 2020.  

ANALYSIS OF THE ISSUES 

In Arturs Valpeters v Melbury Developments Ltd 21 (2010) ELR 64 the Labour Court gave guidance on how 85(A) of the Act, cited above, is to be interpreted.:

“Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the complainant first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule.”

In this case, the Complainant asserted that she was discriminated against because the Respondent would not allow her to resume the role she had fulfilled previously on her return from maternity leave. Specifically, I note that when the Complainant contacted Anita O’Dwyer, a Director of the Respondent, in August 2020 to clarify the position around her return to work, she was told “you stupid f****ing b***ch, I told you I don’t have the hours” and was offered discretionary relief work only from Tuesday – Thursday and work as a cleaner every Monday and Friday even though the employee who had covered her while she was on maternity leave was now working with the Respondent full time in a childcare role. This new proposed role the Complainant was initially offered, namely three days as a relief worker and two days as a cleaner, was unlike the full time position she was doing prior to going on maternity leave in January 2020, namely taking care of the children in the toddler room. I fully accept the Complainant’s evidence on this matter and, having given careful consideration to same, I am satisfied that this amounts, prima facie, to discrimination on the gender and family status grounds. While the Respondent disputed the Complainant’s evidence and highlighted that all of the staff were doing cleaning duties as part of their roles and disputed that the Complainant was offered discretionary relief work from Tuesday – Thursday, stating that she was offered guaranteed hours for these three days, on the balance of probabilities, I prefer the evidence of the Complainant. I also do not accept the suggestion that other staff, such as the employee who covered the Complainant’s maternity leave, should have been retained on full time hours instead of the Complainant because the children were used to them.

In support of the compelling direct evidence of the Complainant, I also noted that correspondence from her solicitor sent to the Respondent on 10 September 2020 which stated that “we are instructed by our client that when she sought to return to her work having completed her maternity leave she was refused a full-time position as heretofore” was replied to by the Respondent on 18 September stating “We received your letter dated the 10th September in relation to Ms Niamh Moloney. Can you please provide detailed clarification on the basis with(sic) which Ms Moloney feels she has a grievance as mentioned in your correspondence”.  This in turn elicited a further response from the Complainant’s solicitor on 16 October 2020 wherein it was noted that their position was as had been outlined in the 10 September 2020 correspondence and highlighted that the Complainant was being offered “part time positions which is contrary to what she was receiving prior to going on maternity leave” and that “these text messages would appear to have been particularly forthcoming since you received our letter”. Specifically, it is clear from the correspondence that the assertion made by the Complainant’s solicitor in his letter of 10 September 2020 was not disputed by the Respondent in their response of 18 September 2020 and it was notable that the text messages offering her part time positions, as is evident from the Respondent’s evidence outlined above, were indeed “particularly forthcoming” as suggested by the Complainant’s solicitor after the aforementioned correspondence of 10 September 2020.  

According to the facts of this case therefore, I note that the Complainant was working five days a week as a Childcare Assistant in the toddler room prior to her maternity leave and am satisfied that, prior to her intended return to work, the Respondent initially only offered her discretionary relief work from Tuesdays – Thursdays as well as work as a cleaner on a Monday and Friday and only offered her guaranteed part time work three days per week from 14 September 2020, following correspondence from her solicitor.

Based on those facts, I find that the Complainant was treated “less favourably” than another employee who was not on maternity leave would have been treated. I also note that no other option was put to the Complainant at any stage prior to the referral of this complaint to the WRC on 7 October 2020.  In light of the foregoing, I find that she was discriminated against on the grounds of gender and family status.

CA-00040286-001:

I highlighted to the Complainant’s representative the decision of the Labour Court in A School v A Worker (EDA 122) where it is stated that“It seems to the Court that as a matter of principle the Complainant cannot rely on the same facts to obtain redress under more than one head of liability under the Acts.” 

Accordingly, this complaint was withdrawn.

CA-00040286-002

In assessing the appropriate remedy, I must follow the judgement of the then European Court of Justice in Von Colson v Land Nordrhein-Westfalen (Case C-14/83) by ensuring that the sanction for breaches of Community rights must be effective, proportionate and dissuasive. The Complainant was subjected to a range of unlawful treatment and comments in the cognisable period. When she attempted to exercise her statutory rights and return to work at the end of her maternity leave, her employer failed to offer her a similar role on the same terms and conditions that she had prior to going on maternity leave.

I am satisfied that the redress awarded should reflect all of these factors and I therefore order, in accordance with my powers under section 82(1) of the Acts, that the Respondent pay the Complainant the sum of €15,000 by way of compensation. This compensation does not contain any element of remuneration and is therefore not subject to PAYE/PRSI.

CA-00040286-003:

I highlighted to the Complainant’s representative the decision of the Labour Court in A School v A Worker (EDA 122) where it is stated that“It seems to the Court that as a matter of principle the Complainant cannot rely on the same facts to obtain redress under more than one head of liability under the Acts.” 

Accordingly, this complaint was withdrawn.