Complainant

Respondent

Parties

Suzanne  Dunne

Matrix Recruitment Group

Representatives

Rory Kennedy B.L., instructed by   Powderly Solicitors

Fiona Egan Peninsula Group Limited

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-00038786-001

16/07/2020

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 and a witness for the respondent gave their evidence under affirmation while another witness for the respondent gave evidence under oath.  Witnesses were cross examined by the other party to the proceedings.

The hearing was held in tandem with ADJ 32666 a complaint from the same complaint against the same respondent that she was unfairly dismissed.  That complaint was lodged on 1 April 2021.

The finalisation of this decision was delayed due to the effects of Covid 19.

The complainant outlined a history of bullying in her initial submission going back to 2007 but noted that she kept detailed notes of meetings since 2017.  She noted that the General Manager made her feel that she was costing the company too much money and that he wanted to reorganise the company to save cost.

The complainant submitted that the main reason that she was submitting the complaint was that following a period of parental leave she was informed that she would be temporarily laid off due to the Covid 19 pandemic.  She submitted that after a week she was told that should was not temporarily laid off but that she was now on the Covid payment scheme.

The complainant submitted that on May 15, 2020, she was offered a completely different role to the one she had left   She submitted that she had previously worked as a branch manager with a team of staff working to her but that she would be returning to a different role and would be sent the job spec and would be expected to sign it ad return to work.

The complainant submitted that the role was so far removed from her previous role that she suggested that she would not be accepting it.   She submitted that she was then informed that she would be retained on the Covid payment scheme until 10 august but would then be looking at Statutory Redundancy.

The complainant submitted that she sent an email outlining her concerns about the selection process applied to her role as there was another person who was at the same level who continued to undertake their position.  The complainant submitted that she outlined that the lack of people management and strategic input at management level in the role offered meant that she could not accept it.   She further submitted that when she received a letter on 7 July talking about the reorganisation of the East Coast region it was just a retrospective justification to get rid of her role.  The complainant submitted that returning from Parental leave made her an easy target for discrimination in terms of taking her out of her role and giving her a substandard position that takes her out of the decision-making position.

The complainant lodged her complaint under the Employment Equality Acts in July 2020.

In later submissions the complainant submitted that she was unfairly dismissed as a result of taking parental leave.  This took place from 9 September onwards.  She also submitted that she did not receive a voucher at Christmas due to being on parental leave but received it in January 2020.

Preliminary issue: pre-lodged claim

The respondent submitted that the complainant lodged her claim on 16 July but was not dismissed until 2 September.  The respondent submitted that the complainant was not dismissed until 2 September 2020.  The respondent noted that the complainant and did not exhaust the internal procedure until the appeals procedure concluded with the issuing of decision of the appeal on 13 October 2020.

The respondent raised the issue of pre-lodged claims and noted that the matter has been addressed by the High Court in Brady v Employment Appeals Tribunal [2015] ELR 1. The respondent noted that while it is accepted that the High Court found that the claim was not pre-lodged in circumstances whereby the claimant had lodged his claim during his notice period and therefore his termination was imminent, it is submitted that in this particular case, the complainant’s position with the respondent had not yet been terminated.

The respondent also refers to the Tribunal case of Caragh Neeson v John O’Rourke & Sean O’Rourke Chartered Accountants (UD2049/2011) where the question of whether a claim will be judged to be pre-lodged in circumstances where a complainant has lodged claim papers but is still in fact employed by the respondent was considered. The respondent submitted that the Tribunal found that the wording of Section 8(2) “demonstrates a manifest intention by the legislature to preclude claims being lodged before the dismissal date.” The Tribunal also went on to state, “if the Tribunal were to look with leniency on premature claims the system could well become clogged up with claims based on the expectation that a dismissal might occur sometime in the future which could later be withdrawn.”

The respondent respectfully submitted that that this is exactly what this claim was at the time of its being lodged as the dismissal had not yet occurred and further submitted that in light of the above, that the Adjudicator should decline jurisdiction to hear this matter under the Equality Acts.

Substantive case.

The respondent submitted that the complainant was one of many who was temporarily laid off and the decision to place the complainant on lay off was in no way a personal decision.  This was done as a result of the restructure that had been ongoing which was brought forward due to the pandemic and was in no way connected to her having exercised her statutory right to Parental leave.

The respondent submitted that in the decision of Melbury Developments v Arthur Velpetters (EDA0917) the Labour Court, whilst examining the circumstances in which the probative burden of proof operates held as follows: –

“Section 85A of the Acts provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must 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.”

The respondent submitted that the complainant has alleged that she was discriminated against under the Equality Acts as a result of taking Parental leave however it submitted that she has failed to provide any evidence to support such claims being made, dates, times, or failed to particularize her claim in any detail.

The respondent noted that whilst it is conscious that the claim being made is one taken under the Equality Acts, the statutory requirement with which it must comply is the Parental Leave Act 1998-2019.

The respondent submitted that in response to the complainants’ entitlements under the Parental leave Acts, in particular to sections 15 & 16 of said Acts.

15.—(1) On the expiration of a period of parental leave (being, in a case where parental leave has been terminated under section 12 , the period specified in the confirmation document concerned) (“the period”), the employee concerned shall be entitled to return to work—

(a) with the employer with whom he or she was working immediately before the start of the period or, where during the employee's absence from work there was or were a change or changes of ownership of the undertaking in which he or she was employed immediately before the absence, the owner on the expiration of the period (“the successor”),

(b) in the job that the employee held immediately before the commencement of the period, and (c) under the contract of employment under which the employee was employed immediately before the commencement of the period or, where a change of ownership such as is referred to in paragraph (a) has occurred, under a contract of employment with the successor that is identical to the contract under which the employee was employed immediately before such commencement, and (in either case) under terms or conditions not less favourable to the employee than those that would have been applicable to him or her if he or she had not been so absent from work.

(2) For the purposes of subsection (1)(b), where the job held by an employee immediately before the commencement of a period of parental leave to which he or she is entitled was not the employee's normal or usual job, he or she shall be entitled to return to work, either in his or her normal or usual job or in that job as soon as is practicable without contravention by the employee or the employer of any provision of a statute or provision made under statute.

(3) Where, because of an interruption or cessation of work at an employee's place of employment, existing on the expiration of a period of parental leave taken by the employee, it is unreasonable to expect the employee to return to work on such expiration, the employee may return to work instead when work resumes at the place of employment after the interruption or cessation, or as soon as reasonably practicable after such resumption.. (c)under the contract of employment under which the employee was employed immediately before the commencement of the period or, where a change ownership such as is referred to in paragraph (a) has occurred, under a contract of employment with the successor that is identical to the contract under which the employee was employed immediately before such commencement, and (in either case) under terms favourable to the employee than those that would have been applicable to him or her if he or she had not been so absent from work.

16.—(1) Where an employee is entitled to return to work pursuant to section 15 but it is not reasonably practicable for the employer to permit the employee to return to work in accordance with that section, the employee shall be entitled to be offered by his or her employer suitable alternative employment under a new contract of employment. (2) Work under a new contract of employment constitutes suitable alternative work for the purposes of this Act if— (a) it is of a kind that is suitable in relation to the employee concerned and appropriate for the employee to do in the circumstances, and (b) the terms or conditions of the contract- (i)relating to the place where the work under it is required to be done, the capacity in which the employee concerned is to be employed and any other terms or conditions of employment are not substantially less favourable to the employee than those of his or her contract of employment immediately before the commencement of the period of absence from work while on parental leave and (ii)Incorporate any improvement to the terms or conditions of employment to which the employee would have been entitled if he or she had not been so absent from work during that period, and (c) the continuity of service is preserved.

The respondent submitted that the complainant has alleged that she was victimised in her selection for temporary layoff and redundancy as a result of availing of such leave.

The respondent submitted that the complainant was one of a number of staff who were laid off due to the pandemic and her position was made redundant due to the structural change that had been ongoing since 2019. The respondent submitted that it was committed to working and engaging with the complainant and was excited at the prospect of continuing to work with her when he offered her what he genuinely believed to be a suitable alternative position on the same set of terms and conditions.

Preliminary Issue

Having regard to the preliminary issue raise by the respondent, I note that the complainant at a previous hearing tried to raise the issue of unfair dismissal under this complaint however, it is my understanding from the respondents’ submissions that the previous Adjudication Officer assigned to hear this complaint adjourned matters to enable the complainant to take an Unfair Dismissal complaint.  The complainant undertook that course of action and accordingly I will confine my deliberations to the matters which were raised or alluded to in the period from taking her parental leave until she submitted her complaint in July 2020.

Substantive issue

The complainant submitted that she was not paid a voucher at Christmas 2019 but was paid the voucher in January 2020.  She submitted that she was an easy target for temporary layoff and that this was a result of her having taken parental leave.  The respondent did not dispute the complainant’s version of events in relation to the voucher.  However, I am not satisfied that the complainant not receiving a voucher when she was absent from work but receiving it when she sought it a number of weeks later amounts to discrimination.

She also submitted that following lay off she was offered a different role when she sought to return to work.  The respondent acknowledged that it offered the complainant a different role when she returned to work.  The complainant submitted that this amounted to discrimination.  Section 85A(1) of the Employment Equality Acts 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

However, I note that the complainant was not returning to work in a similar situation to that which she left.  The respondent submitted that she was returning to a company in circumstances where the Covid pandemic had taken hold and it gave evidence that it had already begun a restructuring process in February.  I also note that the evidence is that the complaint had chosen not to attend management meetings due to a clash of personalities with a colleague and that the new role reflected the realities of her former role.  I am satisfied the respondent has provided a reasonable explanation as to why the complainant was not returning to the same role from which she left.  I am satisfied that the role to which she was returning was equivalent, though different to, the role she left.  I am further satisfied that there are reasons other than discrimination that have been put forward to account for the difference in role offered to the complaint.

Having regard to the written and oral evidence presented to me, I find that the respondent has rebutted the inference of discrimination raised by the complainant.  Accordingly, I find that the complainant was not discriminated against.

Having regard to all the written and oral evidence presented in relation to this complaint, I find that the complainant was not discriminated against.

Employment Equality Act – burden of proof – inference of discrimination rebutted – complainant was not discriminated against