FULL RECOMMENDATION
SECTION 83 (1), EMPLOYMENT EQUALITY ACTS, 1998 TO 2015 PARTIES: RYANS SOLICITORS LLP (REPRESENTED BY MS. MARY FAY B.L. INSTRUCTED BY RYAN & RYAN SOLICITORS) - AND - MRS CAROL CONNOLLY DIVISION:
SUBJECT: 1.Appeal of Adjudication Officer Decision No(s) ADJ-00032704 CA-00043288-004. This is an appeal by Ms Carol Connolly (‘the Complainant’) from a decision of an Adjudication Officer (ADJ-00032704/CA-00043288-004, dated 6 July 2022) under the Employment Equality Act 1998 (‘the Act’). The Adjudication Officer decided that the Complainant’s claim of less favourable treatment on the family status ground contrary to the Act was not well-founded. Notice of Appeal was received in the Court on 10 August 2022. The Court heard the appeal in Dublin on 24 January 2023. The Complainant gave sworn evidence as did Mr Matthew Ryan and Mr Patrick Ryan on behalf of the named Respondent, Ryans Solicitors LLP. The Factual Matrix The Complainant was one of three legal secretaries employed by the Respondent at the material time. She worked three days per week and a colleague worked two days per week. The third – and most junior – legal secretary worked full-time. The Complainant has children of school-going age. Her comparator – the full-time legal secretary does not have children. The Complainant’s normal working hours were 8.00 am to 4.00 pm but, due to the impact of Covid on the bus service she availed herself of, her hours had been temporarily changed by agreement to 7.30 am to 3.45 pm. Her annual gross salary was €28,263.16. It is common case that there had been an ongoing dispute between the Parties during the month of January 2021. The full-time legal secretary employed in the firm was working from home at this time. The Complainant requested to be permitted to do likewise. However, the Partners in the firm, having considered her request, decided that they were unable to accede to it as they were attending the office and required her and the second part-time secretary to be present on their respective working days in order to deal with hardcopy files. There was a lockdown in place at the time but those employed in certain essential services – such as law firms – were permitted to travel to and from their normal place of work. It is common case that a heated conversation took place between the Complainant and Mr Patrick Ryan on 13 January 2021 following which the Complainant left the office and did not return. The Parties communicated thereafter through a series of emails. The Respondent proposed mediation as a means of resolving matters, including by a former partner in the firm with whom the Complainant had previously worked very closely. In the alternative, the Respondent proposed that the Parties could avail themselves of the mediation services of the Workplace Relations Commission. Neither proposal found favour with the Complainant. She resigned her employment by letter dated 15 February 2021 and referred her complaint under the Act (along with four other statutory complaints) to the Workplace Relations Commission on 29 March 2021. The Complainant’s Evidence The Complainant gave evidence in relation to her efforts to engage with her employers in early January 2021 in relation to her wish to be allowed to work from home so as to be in a position to supervise her children who were home-schooling at the time. The Complainant also recounted her recollection of the interaction that took place with Mr Patrick Ryan on 13 January 2021. According to the Complainant, Mr Patrick Ryan made no effort to engage with her after that date and all communication was with Mr Matthew Ryan. She told the Court that she received the offending statement of terms and conditions in response to a query from her about her accrued annual leave. Under cross-examination, the Complainant was asked why she was not amenable to engaging in mediation facilitated by the former partner in the firm. The witness said, she didn’t do so because she believed that Mr Matthew Ryan had already approached the person in question before engaging with her. She also believed that that person was very close to both Mr Matthew Ryan and Mr Patrick Ryan (as well as being their landlord) and she was therefore concerned that the process wouldn’t be impartial. Counsel for the Respondent put it to the Complainant that she never raised a grievance in relation to the statement of terms and conditions that had been issued to her. The Complainant accepted that she hadn’t. The Complainant told the Court that she applied for a number of jobs, including as a legal secretary in a number of named firms, between the date of her resignation and the following November but was unsuccessful in obtaining alternative employment. She did not furnish the Court with any documentary evidence to demonstrate her efforts to mitigate loss. She was in receipt of the PUP payment until about November 2021. In or about that time, her husband who had worked as a self-employed electrician commenced direct employment on a full-time basis and the Complainant decided that she would discontinue her efforts to return to the workplace for a period of time during which she would assume a full-time home-making role. Evidence of Mr Matthew Ryan The witness gave evidence in relation to the manner in which work in the office was distributed amongst the legal secretaries. He said that the work was pooled between them as none of the secretaries worked exclusively for an individual partner or solicitor. Prior to 2019, he said, there had only been two part-time secretaries employed in the firm, the Complainant being one of them. A third person was hired, initially as a receptionist in order to reduce the interruption caused to the two legal secretaries’ workflow by having to deal with the telephone and callers to the office. The witness outlined the thinking of the Partners regarding attendance at the office in January 2021 and the reasons why the decided it was necessary for them and the two part-time legal secretaries to be physically on site whereas the full-time receptionist/legal secretary could fulfil her tasks of answering the phones and dealing with dictation from home. He said the Partners considered the Complainant’s request to work from home but decided it wasn’t feasible as they required somebody with her level of experience and competence in the office. He went on to say that the Partners considered various options such as giving up one of their two parking spaces to allow the Complainant drive to work. The witness emphasised that the Complainant’s work was of the highest standard and the firm did not want to lose her. For that reason, when he became aware that the Government was extending access to the PUP scheme to working parents who were experiencing childcare difficulties, he sent the link to the scheme onto the Complainant. Evidence of Mr Patrick Ryan This witness also gave evidence in relation to the division of duties between the legal secretaries. His evidence was that the Complainant’s role was very different from that of the full-time receptionist/legal secretary. He said that the Complainant was very experienced and could be relied on to complete very advanced work on litigation and conveyancing files whereas the full-time secretary, by contrast, was very inexperienced having joined the firm in 2019 from a retail background. The witness told the Court that he had a very high degree of confidence in the Complainant and her ability. The witness then gave evidence in relation to the situation that pertained post-Christmas 2020 and how the lockdown at that time differed from that of Spring/Summer 2020. He said that the firm attempted to take a collaborative approach to dealing with the issues raised by the Complainant, including her request to work from home but ultimately came to the decision that her presence was required in the office to keep the business running. According to the witness, various options were put to the Complainant but she did not engage with them nor did she make alternative proposals. The witness told the Court that he prepared the statement of terms and conditions from an office precedent. He accepted that it should have referred to the Complainant’s contractual hours and not just the office’s opening hours. However, he said that he understood that that the document sent to the Complainant was a draft that could have been amended following an engagement between the Parties, notwithstanding the fact that it did not contain the word ‘draft’ in the title. Discussion and Decision The Complainant alleges that she was treated less favourably on the family status ground than her colleague as the Respondent permitted the latter – who has not children - to work from home throughout the lockdown period but required the Complainant to attend at its offices and refused to accede to her request to work from home. Both Mr Matthew Ryan and Mr Patrick Ryan gave a very cogent explanation as to why the firm took the decision that the partners and solicitor, along with the two experienced part-time legal secretaries, were required to attend at the offices. They also gave clear and convincing evidence in relation to the very significant differences between the Complainant’s role and that of the full-time receptionist/legal secretary and the difference in their respective levels of competence and experience. The Court finds that the foregoing issues fully explain the different decisions implemented by the Respondent vis-á-vis the Complainant and her named comparator. It follows that the evidence of the Respondent’s witnesses establishes that the apparent difference in treatment of the Complainant that gives rise to the within proceedings did not arise from the Complainant’s family status. The appeal, therefore, fails and the decision of the Adjudication Officer is upheld. The Court so determines.
NOTE Enquiries concerning this Determination should be addressed to Therese Hickey, Court Secretary. |
