Complainant

Respondent

Parties

Carolina  Hennessy

Cognizant Technology Solutions Ireland Ltd

Complainant

Respondent

Parties

Carolina Hennessy

Cognizant Technology

Representatives

  Self

 No Show

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00054036-001

05/12/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00054036-002

05/12/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00054036-003

05/12/2022

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

CA-00054036-004

05/12/2022

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

CA-00054036-005

05/12/2022

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

CA-00054036-006

05/12/2022

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

CA-00054036-007

05/12/2022

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

CA-00054036-012

05/12/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00054036-013

05/12/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00054036-014

05/12/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00054036-015

05/12/2022

The Complainant commenced employment on 2nd of February 2022 and her employment was terminated on the 1st of November 2022 by reason of not successfully passing her probationary period. She alleges several breaches including being discriminated against based on her family status, failure to be provided with fair procedures, a flawed probationary review, not being paid her contractual notice, not being provided with prescribed statutory information about her contract of employment and breaches under the Organisation of Working Time Act.

The Complainant is a lay litigant and ticked boxes on the manual complaint form that were closest to what she believed the breaches to be. She has also provided a very detailed narrative, opened documents, and given sworn evidence at the hearing.

The claim relates to the failure of the Respondent to pay her contractual notice, not providing her with adequate information about her job, not providing flexible work based on her family status as a single mother.

The Complainant worked an 8-hour day and was allowed two 15-minute breaks and a 30-minute lunch break.

The Complainant is a single mother and arising from remote working at times she could not reach her set targets during the required shift times and requested flextime so that she could meet her targets.

The Respondent was on notice of the hearing and failed to attend.

There are a number of issues that arise relating to the complaints and the failure of the Respondent to abide by the contract of employment relating to its terms concerning probation, notice, fair procedures and a breach of equality rights based on the family status ground.

The Complainant opened a Terms and Condition Document sent to her dated the 27th of January 2022.

The information on that document is:

·       Job Title: Process Executive

·       Grade: Programme Trainee

·       Start Date: 2nd of February 2022

·       Line Manager: Team Leader

·       Salary: €25,855

·       Location Dublin

·       Probationary Period: 6 months

·       Notice of Termination: 1 month

·       Hours of Work: 8.30 to 17.30 breaks in accordance with the Organisation Working Time Act.

The termination letter dated 1st of November 2022 stated you will be paid one week’s salary in lieu of your contractual notice period.

The Complainant opened an email from her supervisor stating that she was not allowed to work past 5.30pm to meet the targets set by her employer. During the day she had childcare obligations that prevented her from completing her work during the fixed time set by her employer. She looked for flexibility around her working time so that she could meet those targets.

The Complainant opened her last payslip detailing her last payment and the deductions made by her employer which she stated were not correct.

The Complainant opened the final letter issued by her employer detailing the reasons for ending her employment and stating she would receive 1 weeks’ pay in lieu of serving notice.

The Respondent failed to attend. I am satisfied that they were properly notified of the date, time and place of the hearing. The Respondent had consented to email communication and was notified based on the email provided. Contact was made with the Respondent on the day of hearing to ascertain why they did not attend. The correspondence notifying them of the hearing was also sent again.

There are four categories of complaints before me:

1.       Breach of contractual notice

2.       Breach of the Terms of Employment (Information) Act, 1994

3.       Breach of the Organisation of Working Time Act, 1997 relating to breaks.

4.       Discrimination/Equality breach under the Employment Equality Act 1998.

Breach of Contractual Notice/Statutory Notice:

Her employer writes on the 8th of November 2022 in an email that:

as per your probation outcome letter, your last working day with CTS is 1st November 2022 and you will also be paid one week’s salary in lieu of your contractual notice period

The Complainant has opened a document to this tribunal dated the 27th of January 2022 entitled Terms and Conditions of Employment.

At Notice of Termination this document states 1 month. There may be another document that this tribunal is not aware of. In contract law the Contra Proferentem Rule states that any clause considered to be ambiguous should be interpreted against the interests of the party that created it. If the Employer is asserting that the term only applies to the employee that term would have questionable legal effect as it is clearly lopsided. The UK Braganza principle that discretionary contract clauses should be reasonable has recently been approved in this jurisdiction in the case of O’Sullivan v HSE [2023] IESC 11.

I note Ryan in Redmond on Dismissal Law [Author: Desmond Ryan Publisher: Bloomsbury ProfessionalEdition:3rd edition Law Stated At:1 October 2017] regarding his view on the contra proferentem rule (which means against the offeror) and employment contracts:

1) Notice

[22.61]

A notice to terminate will be construed strictly against the employer and the contra proferentem rule will apply, that is, any ambiguity will be resolved in favour of the employee. 77 Notice should therefore be specific, or make it possible for the date to be deduced with certainty from what is said: Morton Sundour Fabrics Ltd v Shaw. 78 This can be particularly relevant in redundancy circumstances. The date of, say, closure of a business may be precisely ascertainable but the relevant date which has to be ascertained is the date of termination of the employee’s employment.

The key issue before me is whether the employer unlawfully deducted a payment that was properly due to the Complainant.

The payslip opened states that the Complainant received Payment in Lieu of Notice of €516.35, which is 1 week’s pay. However, a deduction was made for Holidays that were overpaid which amounted to €341.82. The Complainant did receive 1 week’s notice. However, the Complainant has also made a claim under the Payment of Wages Act 1991 and that relates to contractual notice as per the employer’s email dated 8th November 2022:

“you will also be paid one week’s salary in lieu of your contractual notice”

However, the offer made to the employee on the 27th of January 2022 stated that Notice of Termination was one month and that must apply to both parties. It is this clause that the Complainant can rely upon. While the Employer has paid 1 week’s notice that is the legal minimum but not the contractual notice in this case.

Section 5 of the Act states:

5.— (1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—

On the facts an unlawful deduction has taken place as 1 months’ notice was due as per the contract. If the Employer asserts that is not so, as a clause exists in the contract not opened to this tribunal where the employee must serve 1 months’ notice and the employee will only be provided with statutory notice which is 1 week in this case, that is an unfair term and is void.

Section 5 (6) states:

(6) Where—

(a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

(b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee, then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.

In Devlin v Electricity Supply Board PW 550/2011 the tribunal noted that:

However a discretion, although it may seem absolute, is not unfettered and must be exercised reasonably and in good faith Horkaluk v Cantor Fitzgerald [2004] 1 ICR 697 and Lichters & Hass v Depfa [2012] IEHC 10.

Hedigan J in Lichters affirmed that a discretion is not unfettered:

In Clarke v Nomura International [2000] IRLR 766 the Court of Appeal for England and Wales considering this type of situation observed: -

"An employer exercising a discretion which on the face of the contract of employment is unfettered or absolute, will be in breach of contract if no reasonable employer would have exercised the discretion in that way."

He went on say that:

10 6.9 Whether in the context of a contract in restraint of trade if that is the case, or to determine the proper exercise by the defendant of its discretion as an employer, the question for the court is as to whether it can be considered that in the circumstances of this case no reasonable employer would have acted as the defendant company did

The facts establish that contractual notice is 1 month which = annual salary of €25,855 divided by 12=€2154 less the 1 week’s paid in lieu of notice=€516.35= unlawful deduction of €1637.65

Terms of Employment (Information) Act, 1994 as amended:

Statement not later than 5 days:

Section 3 of the Act states:

[(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;

The full names of the employer and the employee was detailed.

(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);

The address of the principal place of the relevant business appears to have been given as two addresses were detailed on the document.

(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;

It was not a temporary contract.

[(d) the remuneration, including the initial basic amount, any other component elements, if applicable, indicated separately, the frequency and method of payment of the remuneration to which the employee is entitled and the pay reference period for the purposes of the National Minimum Wage Act 2000

The remuneration was given; however, the contract is silent regarding other component elements if any.

(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;

The Employer detailed all of the above.

[(f) where sections 4B to 4E (in so far as they are in operation) of the Payment of Wages Act 1991 apply to the employer, the employer’s policy on the manner in which tips or gratuities and mandatory charges (within the meaning of section 1 of that Act) [are treated]

[(g) the place of work or, where there is no fixed or main place of work, a statement specifying that the employee is employed at various places or is free to determine his or her place of work or to work at various places;

The Complainant stated that she was working remotely, the Place of work was not specified to one place, to several places or that the Complainant could work at various places including remotely. While the document stated that the offer was given by Cognizant Technology Solutions Ireland Limited of 39/40 Upper Mount Street, Dublin 2 it did not specify the place of work.

(h) either

(i) the title, grade, nature or category of work for which the employee is employed, or

The Complainant’s job title was process executive and her grade was programmer trainee, the document is silent on the nature of the work.

(ii) a brief specification or description of the work;

There is no brief specification or description of the work in the document opened to this tribunal.

(i)                  the date of commencement of the employee’s contract of employment;

The date of commencement is detailed as 2nd of February 2022

(j) any terms or conditions relating to hours of work (including overtime);

This was detailed

(k) where a probationary period applies, its duration and conditions.

The probationary period of 6 months was specified; however, no other conditions were detailed.

(1B) Where a statement under subsection (1A) contains an error or omission, the statement shall be regarded as complying with the provisions of that subsection if it is shown that the error or omission was made by way of a clerical mistake or was otherwise made accidentally and in good faith.

The Terms and Conditions of Employment opened to this tribunal was dated the 27th of January 2022.

There were deficiencies in terms of providing a job description and the conditions that attached to the probationary period. The complaint is well founded. However, it must be noted that most of the requirements were satisfied. However, it must also be noted that the probationary period was meant to run from 2nd of February 2022 to the 1st of August 2022. However, the Probationary Review meeting central to this complaint referral was held on the 28th of October 2022 nearly 3 months after the probationary period had ended.

Statement after 30 days:

At section 3 the Act states:

3.—(1) An employer shall, not later than one month* 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—

*( 3 months at the date of referral)

The only information provided related to the document opened to this tribunal is dated 27th of January 2022 and that relates to information required to be provided not later than 5 days. The Complainant did not make out her case to show that the Respondent failed to comply with section 3 and the information required to be given to her after 3 months.

Organisation Working Time Act 1997 as amended:

No evidence was presented to show that any breach occurred concerning break periods. I am satisfied that no evidence was adduced to make out that any breach occurred. I determine thatCA-00054036-004 is not well founded.

 However, CA-00054036-005 relates to annual leave entitlement on leaving. The Complainant has worked for 10 months as her end date was 30th of November 2022 and not the 1st November 2022. The Act states that the following should apply when calculating leave:

19.—(1) Subject to the First Schedule (which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to—

(a) 4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment),

(b) one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or

(c) 8 per cent. of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks):

Provided that if more than one of the preceding paragraphs is applicable in the case concerned and the period of annual leave of the employee, determined in accordance with each of those paragraphs, is not identical, the annual leave to which the employee shall be entitled shall be equal to whichever of those periods is the greater.

The statutory leave year begins on the 1st of April. For the purposes of the leave year the Complainant worked until the 30th of November 2022 as holiday entitlement accrues during notice. She worked 8 months. She worked more than 40 hours a week=160 hours a month x 8= 1280 hours.

One third of working week for each month in the leave year = .33 x 8= 2.64 weeks.

8% of the hours worked in a leave year based on 1280 hours worked = 102.4 hours divided 40 = 2.56 weeks

The last payslip shows that €341.82 hours were deducted based on a pay period labelled 11 and dated 30/11/2022. This would indicate that the Company leave year runs from January. Each calendar month attracts 1/3rd of a working week for each month. In this circumstance the accrued holiday running from January would be 10 x .33 = 3.3 weeks.  As one week is calculated to be €516.35 and as no accrued holiday benefit was given to her during the notice period of November this equates to a value of 1/3rd of a week or = €170. As the Employer deducted €341.82 based on a termination date of 1st of November this was too much and therefore €170 is owing to the Complainant as the value of the holiday accrued in November should be credited to her. The complaint is well founded and I order the Respondent to pay the Complainant €170 in compensation.

Employment Equality Act 1998 as amended (the Act):

The Complainant alleged that she was discriminated against on the ground of Family Status and Conditions of Employment.

She states that the discrimination occurred from the 28th of October to 1st of November 2022.

Principally it is alleged that the Respondent was inflexible about her working time and that in turn discriminated against her. She was let go for not reaching targets based on an inflexible rule relating to starting and finishing times. That rule discriminated against her based on her family status and her obligation to look after a young child as single mother. She accepted that she must reach targets; however, that required some flexibility to be given to her to work past a set time. The Company also failed to take account of other factor that impacted on her performance such as technical issues and only being provided training in September 2022 which was very late.

The Complainant opened an email from her supervisor which stated that she could not work outside shift hours of 8.30am to 5.30pm unless approved by her supervisor. The Complainant arising from her child caring demands during remote working stated that she required such flexibility so that she could meet her targets. The Company knew she required such flexibility and rather than accommodating her began a disciplinary process to end her employment that was described as a probationary review.

The Complainant alleged that she only received training in October 2022; although, she commenced employment in February 2022 and that also contributed to her failing to meet targets. She worked during her holiday periods to resolve persistent technical issues.

Probationary Review or Performance/Disciplinary Meeting:

It also must be noted that the Complainant’s Probationary Review which terminated her employment in October 2022 occurred nearly 3 months after the expiry of the 6 months period which was the 1st of August 2022. On the evidence the Complainant did not receive her contractual notice of 1 month and was terminated within 1 working day of a probationary review that appears 3 months late.

The Complainant opened an email sent to her from her Supervisor and she stated this related to issues that occurred in October 2022:

“You fixed your last listing yesterday at 6.39pm, without receiving prior approval from my end. During our conversation you mentioned 2 reasons as to why you were working outside the shift times. One was that you had technical issues throughout the ..which made you lose around an hour of your time. The other reason you mentioned is that you sometimes need to take care of your child while working.”

“Regarding the technical issue I reminded you we have to follow procedure. Which opening a ticket…and regularly following up with the tool team..To the second point when we are at work, whether that is remotely or from the office, we are required to devote all our time and attention to our work. It is important and necessary that we make appropriate care arrangements to ensure we can carry out our role, as per the contract.”

“Finally, I would like to remind you that we cannot work outside our shift times (8.30am to 5.30pm), without prior approval from your lead, while ensuring we also stick to the breaks.”

A Review meeting was held on the 28th of October 2022, and it was stated that:

·       You have only managed to achieve the required targets in July and August

·       You have not adhered to the required break and shift times

There are two allegations one relates to performance, and one relates to conduct.

On the Tuesday the 1st of November the Complainant’s employment was terminated. Her contractual notice I have determined to be 1 month. This means that the contractual termination date was in fact 30th of November 2022, or 10 months into her contract.

European Law and Family Status:

I note in Bolger, Bruton, Kimber; Employment Equality Law 2nd Ed. 2022:

The amended Equal Treatment Directive was ultimately consolidated with the other gender equality Directives into one single Directive in 2006, known as the Recast Directive,116 which came into effect in August 2010. The title of the Recast Directive contains a subtle but significant change from the previous amended Equal Treatment Directive. Up to the Recast Directive, the emphasis had been on equal treatment of men and women. The title of the Recast Directive stated it to be “on the implementation of the principle of equal opportunities and equal treatment of men and women”. The second Recital refers to equality between men and women as a fundamental principle of Community law and/or art.2 of the TFEU and art.3(2) of the TEC (now art.8 TFEU) and the case law of the Court of Justice. Bringing the principle beyond equal treatment to that of equality and providing for an express reference to equal opportunities involves a wider approach and a clear move towards a more substantive concept of equality. To that end, the Recast Directive reflects and reinforces an important conceptual shift away from equal treatment to recognising the substantial disadvantages that women face in the labour market.117

I also note:

2-59

Whilst the scope of the Recast Directive does not cover important issues for working parents such as maternity and parental leave, it does make some attempt to address the disadvantages arising from the struggle to balance family life and the world of paid employment. For example, Recital 11 stresses the importance of flexible working time arrangements and includes express reference to appropriate parental leave arrangements and accessible and affordable childcare facilities. In even stronger terms, art.21(2) creates an expectation that Member States shall encourage the social partners “to promote equality between women and men and flexible working arrangements, with the aim of facilitating the reconciliation of work and family life”. Article 15 recognises a worker’s right to return to work after her maternity leave. The reinforcement of these principles emphasises a further move away from formal equality as expressed in the equal treatment principle towards a more substantive approach as expressed in the language of equal opportunities and equality. This sends a message both to the Court of Justice and to the Member States that Community law now requires a gear change towards achieving substantive rather than formal equality.

I also note that:

5-121

The Equal Treatment Directive included discrimination in relation to marital and family  status as part of gender discrimination.174 There were no judgments of the Court of Justice on the precise parameters of either of these  grounds. It has been commented that  family  status is designed to cover discrimination on the basis of a person’s position within a  family, for example, as a parent, child or grandparent.175 In fact, given the linkage of  family  status with the ground of gender, it is likely that as a matter of EU law,  family  status discrimination per se in the absence of gender discrimination, is not prohibited in European law176 and that Irish law therefore goes further than what is necessitated by our membership of the Europe Union. The Recast Directive does not include any reference to  family  status or marital  status and therefore it is likely that  family  status as a protected ground arises only as a matter of Irish law and in any event as a separate ground to that of gender.177

Family Status and Irish Law:

I also note the following:

5-125

The case of O'Donnell v HSE182 shows an interesting application by the Equality Tribunal of the concept of indirect discrimination on grounds of family status and whether such discrimination can be objectively justified on the facts. A complaint of indirect discrimination on grounds of marital status and family status was brought by a number of nurses who were required to work a roster of seven consecutive days in a row and on occasion 13 out of 16 days which meant that they were away from home for 13-and-a-half-hours per day for continuous periods. The Equality Officer found that the roster indirectly discriminated against the complainants on gender and family status grounds and found that the maintenance of the roster was not objectively justified. She awarded compensation of €5,000 to each of the complainants. Even more significantly, she directed the employer to immediately implement a new roster.1

The Respondent failed to attend at the hearing and the Complainant must make out a Prima Facie Case.

Family Status in the Act is defined as:

“family status” means responsibility—

(a) as a parent or as a person in loco parentis in relation to a person who has not attained the age of 18 years, or

(b) as a parent or the resident primary carer in relation to a person of or over that age with a disability which is of such a nature as to give rise to the need for care or support on a continuing, regular or frequent basis,

The Act defines discrimination as:

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 when

(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—

And at section 6(2):

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

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

Hypothetical Comparator:

The decision of the Labour Court in Togher Developments v Edgars Grods EDA 105 was considered with reference to hypothetical comparators. It was found that the complainant had failed to adduce evidence that a hypothetical comparator would have been treated differently in similar circumstances. The complaint was rejected. I note in the European Equality Law Review 2019/2 The Burden of Proof in Anti-Discrimination Proceedings, A focus on Belgium, France and Ireland by Julie Ringheim that:

The definition of direct discrimination allows for the use of a hypothetical comparator. Courts have also accepted that a presumption of discrimination can be inferred from other types of facts that raise the suspicion that the adverse treatment was determined by a prohibited ground. Thus, Irish courts have recognised in some cases that this causal link could be inferred from the fact that the respondent’s conduct diverged from standard practice in relation to the service in question. (seeMelbury)

In Regan Employment Law 2nd Ed chapter 17, the use of a hypothetical comparator is referenced:

‘Less favourable treatment’ is more commonly known as ‘direct discrimination’ although that particular phrase is not used in the Employment Equality Act. In general, a complainant must prove less favourable treatment as compared with another person in a similar position to the complainant. If a complainant is unable to demonstrate that the chosen comparator/s were treated less favourably, if for example all employees were treated equally poorly or unlawfully, the claim of discrimination will fail. The wording of s 6 ‘would be treated’ allows for the use of hypothetical comparators in appropriate circumstances of alleged discriminatory treatment, other than in relation to equal pay where an actual comparator is required. 

The Complainant relies upon the following facts:

·       The Complainant can rely on the Family Status ground as she cares for young child and is a single mother and requested flexibility because of that ground.

·       The Review was held 3 months late.

·        Her unsatisfactory performance was linked to the failure of the employer to provide any flexibility relating to working time.

·       The employee wanted to be flexible and to meet her targets; however, the inflexibility of her employer about starting and finishing times and break times discriminated against her as a single mother.

·       The Review process which ultimately led to her dismissal was flawed and failed to apply fair procedures relating to the two separate allegations made against her. She had no representative attending, the review hearing failed to hear her side to explain why the targets were not met and why she at times did not adhere to the break time.

·       The Review was conducted outside of the probationary period.

·       The Condition of employment relating to time and breaks discriminated against her as a single mother with a young child as they were inflexible and unreasonable.

·       The initiation of a flawed  and rushed disciplinary review and subsequent dismissal within 1 day, the failure to apply fair procedures,  the breach of contractual probationary rights, the breach of notice terms, all of these after the request to accommodate her with more flexible working time, are facts which establish a presumption of discrimination on the family status ground.

The failure to provide any flexibility relating to starting and finish times and break periods is arguably indirectly discriminatory based on the Family Status Ground.

Indirect Discrimination relating to a Policy:

Indirect discrimination occurs when a law, policy or programme does not appear to be discriminatory, but has a discriminatory effect when implemented (European Commission (2010). EU Gender Equality Law: Update 2010. European Network of Legal Experts in the Field of Gender Equality.) In this case the inflexibility relating to starting and finish times and break times when implemented has a discriminatory effect on an employee caring for a young child.

The Employment Equality Act requires that the Complainant must meet a prima facie threshold and then the onus moves to the Respondent to rebut the inference or presumption of discrimination.

In this case the Employer; although, notified of the hearing, failed to attend.

The case law relating to the Prima Facie test can be summarised as follows:

Prima Facie Case:

In Mitchell v Southern Health Board, DEEO11 the Labour Court held that a ‘claimant must prove, on the balance of probabilities, the primary facts on which to rely in seeking to raise a presumption of unlawful discrimination.’  And in McCarthy v Cork City Council EDA0821 ‘that at the initial stage the complainant is merely seeking to establish a prima facie case. Hence it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.’

I note that in Murdoch and Hunt 2021 Edition Bloomsbury Prima Facie is defined as:

[Of first appearance]. On the face of it; a first impression. A prima facie case is one in which there is sufficient evidence in support of a party’s charge or allegation to call for an answer from his opponent. If a prima facie case has not been made out, the opponent may, without calling any evidence himself, submit that there is no case to answer, whereupon the case may be dismissed.

The principle in discrimination litigation is that once a claimant establishes a prima facie case of discrimination the onus shifts to the respondent, who must prove that no discrimination has occurred.

And the Court of Appeal England and Wales in Igen v Wong EWCA/Civ/2005 stated that the claimant has to ‘prove on the balance of probabilities facts from which the tribunal could conclude, [this does not mean must prove on the balance of probabilities] in the absence of an adequate explanation, that the employer has committed an act of discrimination against the claimant.’

It is also the case that the Labour Court in Melbury Developments Ltd v Valpeters EDA 1728 has held that membership of a protected group and evidence of adverse treatment is not sufficient to shift the burden of proof in a direct discrimination case, there must be a causal link between the ground and treatment. However, a difference in treatment can meet this test, In Brunnhofer, for instance, the CJEU held that where a female worker proves that the pay she receives from her employer is less than that of a male colleague and that they both perform the same work or work of equal value, she is prima facie the victim of discrimination.28 (the European Equality Law Review 2019/2 The Burden of Proof in Anti-Discrimination Proceedings,Judgment of 26 June 2001, Susanna Brunnhofer v Bank der österreichischen Postsparkassse AG, C-381/99, para. 58)

The facts supported by documentary evidence and oral testimony do give rise to an inference of discrimination arising from conditions of employment that are inflexible relating to working time and breaks and indirectly discriminated against the Complainant on the Family Status Ground. The Complainant is the carer for a dependent child. She worked remotely. At times she required flexibility both regarding to breaks and finishing times. The Complainant was willing to work post finishing times to achieve her targets. When she required flexibility because of her family status on the face of the email opened to this tribunal, the response from her manager was technical and bureaucratic rather than considering the request based on the complainant’s Family Status.

The failure to consider the Complainant’s request to work past normal finishing times while working remotely in turn gave rise to targets being missed. This then gave rise to a disciplinary review held 9 months into the contract which only provided for a 6-month probationary review. That review was held on or about the 29th of October 2022 and the Complainant’s employment was terminated on the following working day. She was not accompanied at the review. While given the right to appeal she stated that she was locked out of the Company’s network from the 1st of November 2022 and had no practical means of progressing an appeal. None of Complainant’s grievances raised at the hearing which impacted on her performance targets were considered such as being provided training only in October 2022, 8 months into the contract and that there were persistent and ongoing technical issues with the system. The Complainant was not accompanied at the hearing and her employment was ended within a working day of the hearing. Her performance in fact was good in July and August 2022.

There are 4 contract terms or conditions that are at play relating to the claim of discrimination:

1.       Flexibility relating to start and finishing times referred to as flexitime

2.       A breach of the probationary 6-month period as a term in the contract being extended to 9 months

3.       A breach of the contractual notice period and being dismissed within a working day of the disciplinary review.

4.       An absence of fair procedures is an implied term in the contract The obligation would apply to both the allegations.

In this case the Employer was on notice of the Complainant’s needs for some flexibility based on her Family Status as a single mother with a young child. There is no evidence that the Employer attempted to consider this request. That is not fatal as all employees could have the rule applied in this way.

 What is clear though, is that the strict adherence to set starting and finishing times did impact on the Complainant’s capacity to meet targets. The reason for terminating the contract in the letter dated the 1st of November was:

·       You have only managed to achieve the required targets in July and August

·       You have not adhered to the required break and shift times

The probationary review is more akin to disciplinary review alleging poor performance and a failure to adhere to standard break times which is misconduct.

 The facts relating to inflexibility about working time and breaks give rise to an inference of indirect discrimination based on the Complainant’s family status as a single mother looking after a dependent child. Indirect discrimination occurs when a law, policy or programme does not appear to be discriminatory, but has a discriminatory effect when implemented. In other words, the condition that she should adhere to set starting and finishing times indirectly discriminated against her arising from her family status and the requirement to work those set hours. She had requested flexibility and stated that during her holidays she worked flexibly so that targets would be met, due to persistent technical issues with the system.  As she was flexible both about working remotely and meeting company needs outside of set times, she also required flexibility and needed to work outside normal starting and finishing times based on the fact that she looked after a young child. The factual matrix of this case has given rise to a presumption of indirect discrimination based on the company not assessing the need for flexibility around working time based on the ground of family status and/or not providing for some flexibility around working time based on that ground.

As the Respondent failed to attend at the hearing that presumption has not been rebutted. I therefore must find that the Respondent has indirectly discriminated against the Complainant on the ground of Family Status

Direct Discrimination and Less Favourable Treatment on the Ground of Family Status:

It must also be noted that disciplinary/late probationary review was held in her 9th month of employment which is outside the contractual probationary period of 6 months. On the facts there is also an absence of fair procedures during a performance/disciplinary review, that at face value appears to be one sided and predetermined. There is an implicit term in the contract that relates to fair procedures and arguably that should apply when an employer is acting outside the contractual probationary period and the allegations relate to performance and conduct.

While it is clear it can be argued that the application of the company rules relating to starting and finishing times gave rise to indirect discrimination, direct discrimination is an issue to be determined relating to their failure to adhere to the contractual probationary period, notice period and the absence of fair procedures. These failures are not breaches where the Employer could argue that they are universally applied to all employees and that the Employer consistently breached contractual probationary periods, notice periods and fair procedures. Based on these facts the Complainant has made out a prima facie case of direct discrimination by being treated less favourably to an employee who had not family status. The facts show that the employer was on notice of the Complainant’s Family Status as she requested flexibility based on her family status, where she was reviewed outside of her probationary period, which was more akin to a disciplinary review, terminated within 1 working day and not afforded fair procedures, in totality these facts give rise to an inference of direct discrimination on the ground of family status. This inference was not rebutted and therefore I must find for the Complainant that she was directly discriminated against on the ground of her Family Status.

In this case it is appropriate to apply a hypothetical comparator as the comparator is an employee who does not have family status.

Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

I determine that the Complainant was discriminated against on the ground of Family Status.

Section 82 of the Act states the following:

[(4) The maximum amount which may be ordered by the F142[Director General of the Workplace Relations Commission] by way of compensation under subsection (1)(c) or (1)(f) shall be—

(a) in any case where the complainant was in receipt of remuneration at the date of the reference of the case, or if it was earlier, the date of dismissal, an amount equal to the greatest of—

(i) 104 times the amount of that remuneration, determined on a weekly basis,

(ii) 104 times the amount, determined on a weekly basis, which the complainant would have received at that date but for the act of discrimination or victimisation concerned, or

(ii)                €40,000,

The Complainant’s gross weekly wage based on her payslip is €516.35.

The effects of indirect discrimination contributed to the Complainant being dismissed. Based on the factual matrix of this case and documentary evidence opened particularly:

·       relating to an employee request for flexible work based on family status

·       the very difficult personal circumstances that she faced as a single mother including being threatened with eviction from her home,

·       the employer’s response which was less than understanding

·       successfully reaching monthly targets during the most recent periods during the contract probation period

·       the very late review in breach of a contract term that such a review would last for a period of 6 months and not 9 months

·       the effects on her personally arising from the failure to provide flexible working as she continues to find it difficult to find a comparable role

 I award the Complainant 3 months salary for the effects of indirect discrimination relating to the application of set starting and finishing times while the Complainant was remotely working at home and required to work outside of the required break and shift times so that she could reach her targets. The presumption also made out is that if such flexibility was provided, she would have met her performance targets.

I award the Complainant 12 months salary for the effects of direct discrimination relating to her failure to achieve targets and for not adhering to required break and shift times based on a prima facie case being made out of direct discrimination on the ground of family status based on these facts:

1.       the Respondent’s inflexibility relating to start and finishing times referred to as flexitime

2.       A breach by the employer of the probationary 6-month period as a term in the contract being extended unilaterally to 9 months

3.       A breach of the contractual notice period of 1 month and being dismissed within a working day of the disciplinary/performance review and being provided with only 1 weeks’ notice.

4.       An absence of fair procedures which is an implied term in the contract during the review period which was flawed and led to the Complainant’s dismissal within 1 day of the review meeting. There was no engagement by the decision maker with the reasons given by the Complainant to explain why she had not met targets.

And that these breaches are factual evidence of less favourable treatment when compared to an employee not possessing family status:

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

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

This less favourable treatment is based on the Factual Matrix of the late probationary review and absence of fair procedures during the review/disciplinary hearing, relating to allegations about a failure to reach targets and comply with the required break and shift times while working remotely, which was inextricably linked to her family status and her need to look after a young child. The Employer was on notice that she had requested working time flexibility based on her family status. The Complainant has met the prima facie test, and, on these facts, I determine that an inference of direct discrimination has been made out. The presumption also made out is that if such flexibility was provided, she would have met her performance targets.

I award the Complainant 12 months salary for the effects of direct discrimination arising from less favourable treatment on the ground of family status that led to the Complainant being dismissed from her position. I determine that this award for direct discrimination to be a proportionate and to be effective based on the circumstances of this case.

I have determined that the Complainant was discriminated against on the ground of family status and in total award 15 months (3 months for indirect discrimination and 12 months for direct discrimination) calculated as follows: weekly wage of €516 x 65 weeks (15 Months) = €33,540.

Minimum Notice & Terms of Employment Act, 1973:

There are 3 complaints brought under this Act.

·       CA-000-54036-013 which states ‘I did not receive my statutory minimum period of notice on the termination of my employment or payment in lieu thereof.

On the evidence of the last payslip opened the Complainant did in fact receive her minimum notice and therefore I find the complaint is not well-founded.

·       CA-000-54036-014 I did not receive all my rights during the period of notice

The right to holidays has been addressed in CA-00054036-005 during the notice period. No other right has been particularised. While the complaint is well founded, I do not make an award of compensation as this would amount to double compensation on the same facts.

·       CA-000-54036-015 I did not receive minimum notice of termination of my contract of employment from my employer

The employee did in fact receive the minimum notice of termination of the contract but not the contractual notice of 1 month. This is complaint is not well founded.

The investigation of these complaints was based on the sworn oral evidence given at the hearing by the Complainant. I am satisfied that the Respondent was notified of the time, place and time of the hearing and failed to attend.

Payment of Wages

There are three complaints:

CA-00054036-001: My employer has made an unlawful deduction from my wages (Payment of Wages Act 1991 as amended)

This complaint is well founded.

On the facts an unlawful deduction has taken place as 1 months’ notice was due as per the contract. If the Employer asserts that is not so as a clause exists in the contract not opened to this tribunal where the employee must serve 1 months’ notice and the employee will only be provided with statutory notice which is 1 week in this case, that is an unfair term and is void.

The facts establish that contractual notice is 1 month which = annual salary of €25,855 divided by 12=€2154 less the 1 week’s pay in lieu of notice=€516.35= unlawful deduction of €1637.65

I order the Respondent to pay the Complainant €1637.65 less any statutory deductions.

CA-00054036-002: relates to a claim where it is alleged that the employer paid her less than the amount due. While this complaint is well founded it based on the same facts as CA-00054036-001 and would amount to double compensation on the same facts, so I decide to make no award of compensation for this complaint.

The same ratio applies to:

CA-00054036-003 for a claim relating to the failure to pay contractual notice. The complaint is well founded; however, would amount to double compensation on the same facts, so I decide to make no award of compensation for this complaint.

Hours of Work:

The Complainant alleged that:

CA-00054036-004: I do not get breaks; however, no case has been made out to ground this complaint and therefore the complaint is not well founded

CA-00054036-005: I was not compensated for the loss of my annual leave on leaving, this complaint is well founded.

Loss of Annual Leave:

The last payslip shows that €341.82 hours were deducted based on a pay period labelled 11 and dated 30/11/2022. This would indicate that the Company leave year runs from January. Each calendar month attracts 1/3rd of a working week for each month. In this circumstance the accrued holiday running from January would be 10 x .33 = 3.3 weeks.  As one week is calculated to be €516.35 and as no accrued holiday benefit was given to her during the notice period of November this equates to a value of 1/3rd of a week or = €170. As the Employer deducted €341.82 based on a termination date of 1st of November this was too much and therefore €170 is owing to the Complainant as the value of the holiday accrued in November. The complaint is well founded, and I order the Respondent to pay the Complainant €170 in compensation.

Terms of Employment (Information) Act, 1994:

The Complainant stated that:

CA-00054036-006:

She was not notified in writing of a change to her terms of employment. There are two breaches of contract which are the extension of the probationary period past 6 months to 9 months and the failure to give 1 months’ contractual notice. Both breaches are considered under other headings and are not considered as changes to a contract rather as breaches to a contract. The complaint is not well founded as it has not been particularised and made out as a change(s) to a contract term without notice. They are progressed separately under payment of wage and unfair discrimination.

CA-00054036-007:

She did not receive a statement of her core terms in writing. This complaint is partially well founded as a statement in writing was provided. There were deficiencies in terms of providing a job description and the conditions that attached to the probationary period. The complaint is well founded. It must be noted that most of the requirements were satisfied. On the facts that she received most of the information set out in the Act, I award 1 week’s compensation and order the Respondent to pay the Complainant €516.

Discrimination Employment Equality Act 1998:

CA-00054036-012:

I determine that the Complainant was indirectly discriminated against on the ground of Family Status.

I award the Complainant 3 months’ salary for the effects of indirect discrimination relating to the application of set starting and finishing times while the Complainant was remotely working and that she required to work outside of set working times to reach her targets. The presumption also made out is that if such flexibility was provided, she would have met her performance targets.

I determine that the Complainant was also directly discriminated against on the ground of Family Status.

I award the Complainant 12 months’ salary for the effects of direct discrimination relating to her contractual terms that a probationary review would be for 6 months and in this case was conducted after 9 months and that fair procedures were not applied in determining two allegations:

·       Failure to achieve targets

·       You have not adhered to the required break and shift times

And that these breaches are factual evidence of less favourable treatment when compared to an employee not possessing family status:

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

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

This less favourable treatment is based on the Factual Matrix of the late probationary review and absence of fair procedures relating to a failure to reach targets and to comply with the required break and shift times while working remotely, with were inextricably linked to her family status and her need to look after a young child. The Complainant has met the prima facie test, and on these facts, I determine that an inference of direct discrimination has been made out. The presumption also is made out that if such flexibility was provided, she would have met her performance targets.

I award the Complainant 12 months’ salary for the effects of direct discrimination arising from less favourable treatment on the ground of family status that led to the Complainant being dismissed from her position. I determine that this award for direct discrimination to be proportionate and also to be effective based on the circumstances of this case.

I have determined that the Complainant was discriminated against on the ground of family status and in total award 15 months (3 months for indirect discrimination and 12 months for direct discrimination) calculated as follows: weekly wage of €516 x 65 weeks (15 Months) = €33,540.

Minimum Notice & Terms of Employment Act, 1973:

There are 3 complaints brought under this Act.

CA-000-54036-013 which states ‘I did not receive my statutory minimum period of notice on the termination of my employment or payment in lieu thereof.

On the evidence of the last payslip opened the Complainant did in fact receive her minimum notice and therefore I find the complaint is not well-founded.

CA-000-54036-014I did not receive all my rights during the period of notice

The right to holidays has been addressed in CA-00054036-005 during the notice period. No other right has been particularised. While the complaint is well founded, I do not make an award of compensation as this would amount to double compensation on the same facts.

CA-000-54036-015 I did not receive minimum notice of termination of my contract of employment from my employer.

The employee did in fact receive the minimum notice of termination of the contract but not the contractual notice of 1 month. In any case it has been determined under the Payment of Wages Act and therefore I make no award of compensation.

Contractual Notice-Minimum Notice-Payment of Wages-Family Status-Indirect Discrimination-Direct Discrimination-Conditions of Employment