ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00036723
Parties:
| Complainant | Respondent |
Parties | Marsha Flannery | Unislim Limited |
Representatives |
| John Duggan Callan Tansey Solrs. |
Complaint(s):
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-00047981-001 | 05/01/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003 | CA-00047981-002 | 05/01/2022 |
Date of Adjudication Hearing: 15/09/2022
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
In accordance with Section 79 of the Employment Equality Acts, 1998 (as amended) a complaint has been referred to the Director General of the Workplace Relations Commission who has in turn deemed it appropriate that the complaint be investigated with any appropriate and/or interested persons to be provided with an opportunity of being heard. In these circumstances, and following a referral by the said Director General, of this matter to the Adjudication services, I can confirm that I am an Adjudicator appointed for this purpose (and/or an Equality Officer so appointed). I confirm that I have fulfilled my obligation to make all relevant inquiries into the complaint. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered in the course of the hearing as well as any written submissions disclosed in advance of the hearing and in the course of the hearing (and which have been opened to me).
Where a person believes they have been discriminated against on one of the nine recognised grounds or in any other way has been treated unlawfully under the Employment Equality Acts they must write to the party that they believe has treated them unlawfully using the EE2 form asking for relevant information to determine their course of action. The proposed Respondent may reply by way of form EE3. No issue has been made of this process.
The Complainant herein has referred a matter for adjudication as provided for under Section 77 of the 1998 Act (as amended). In particular the Complainant (as set out in her Workplace Relations Complaint Form dated the 5th of January 2022) seeks redress from the Respondent in circumstances where she claims her Employer behaved unlawfully and discriminated against her in the course of her employment wherein she says that she was treated less favourably than another person has or would have been treated in a comparable situation on the grounds of her Family Status and Gender (as detailed in Section 6 of the 1998 Act (as amended)).
The Operative Section is Section 6 of the Employment Equality Act 1998 where at:-
Sub Section 6
(1) For the purpose of this Act…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 in subsection (2) …..(the “discriminatory grounds”).
Section 6
(2) As between any 2 persons the discriminatory grounds .. are…
- (a) That one is a woman and the other is a man (the “gender ground”)…
- (c.) That one has family status and the other does not (the “ family status ground”)
Also relevant in this claim is the assertion in 6(2A) which specifically deals with pregnancy related issues and which states:
“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.”
In the event that the Complainant is successful, it is open to me to make an award of compensation for the effects of the acts of discrimination and/or of the victimisation. I can also give direction on a course of action which might eliminate such an occurrence in the future (per Section 82 of the 1998 Employment Equality Act).
Guidance on quantum in relations to awards of discrimination has been given by the Labour Court in the case of Lee t/a Peking House -v- Fox EED036 :
“Effects which flowed from the discrimination which occurred. This includes not only financial loss suffered by the Complainant arising from the discrimination but also the distress and indignity which she suffered in consequence thereof”.
Generally speaking, in employment equality issues a complainant has little or no direct evidence of discrimination. EU law recognised this and has adopted a burden of proof in all Equality Directives which recognises such difficulty. Article 19(1) of the Recast Directive (Directive 2006/54) provides as follows –
“….when persons who considered themselves wronged because the principle of equal treatment has not been applied to them establish, before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment.”
This has been transposed into Irish law by section 85A of the Employment Equality Acts:
“…in any proceedings facts are established by… a complainant from which it may be presumed there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.”
The Labour Court’s (and WRC’s) approach to this issue and the test for applying section 85A (burden of proof) is well settled in a line of decisions of both bodies starting with the Labour Court’s Determination in Mitchell v Southern Health Board ([2001] ELR 201):
“..the claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only where these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment.”
The Complainant must establish a Prima Facie case.
In addition to the above and in accordance with Section 41(4) of the Workplace Relations Act, 2015 and following the presentation by an employee of a complaint of a contravention by an employer of an Act (or Acts) contained in Schedule 5 of the Workplace Relations Act of 2015, made to the Director General and following a referral by the said Director General of this matter to the Adjudication services, I can confirm that I have fulfilled my obligation to make all relevant inquiries into the complaint. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered during the course of the hearing.
In particular, the Complainant herein has referred the following complaint:
A complaint of a contravention of the Protection of Employees (Fixed Term) Work Act 2003that is, a Complaint that the Employer has contravened a condition of employment for a fixed-term employee as set out in the Act and in particular at Section 6 of the Act which states, in general terms, that a fixed term employee shall not, in respect of his or her conditions of employment be treated in a less favourable manner than a comparable permanent employee.
It should be noted that the Act at Section 6(2) recognises that the Employer may be able to justify less favourable treatment on objective grounds and Section 7 of the Act further details that such treatment must be appropriate and necessary for the purpose of achieving a legitimate objective.
Section 9 of theProtection of Employees (Fixed Term) Work Act 2003 states that at the expiration of three years of continuous employment (under fixed term Contract(s)) an employer can only operate one more fixed term Contract and only for one year duration - unless there are objective grounds justifying otherwise.
Also, Section 9 specifies that the aggregate duration of two or more continuous fixed term Contracts shall not exceed 4 years – unless there are objective grounds justifying same.
Section 8 of theProtection of Employees (Fixed Term) Work Act 2003 puts the onus on the employer to declare (in writing) what the objective condition for determining the Contract of Employment is to be. This will be arriving at a specific date, completing a specific task or the occurrence of some other specified event. Where (per section 8(2)) an Employer proposes to renew a fixed term Contract there is an onus on the Employer to communicate in writing what the objective justification is for renewing as a fixed term Contract and not offering a Contract of Indefinite duration.
Section 14 of the Protection of Employees (Fixed Term) Work Act 2003 (as amended bythe Workplace Relations Act 2015) details the options open to an Adjudicator who has heard evidence in connection with the complaint raised and in particular it is open to me to:
Declare whether the complaint is well founded,
Require that the Employer to comply with the relevant provision,
Require the Employer to re-instate or re-engage the employee (including on a Contract of Indefinite duration),
Require the Employer to pay to the employee an amount considered just and equitable though not exceeding 2 years of remuneration.
The Protection of Employees (Fixed Term) Work Act 2003 transposes into Irish law the aspirations set out in the Framework Agreement on fixed -term work (published in March 1999) and the subsequent Council Directive 1999/70/EC (dated 28th of June 1999). The stated aims of the fixed-term work directive are to improve the quality of fixed term work by ensuring the application of the principle of non-discrimination and establish a framework to prevent abuse arising from the use of successive fixed term employment contracts. The Framework agreement on fixed term work purports to balance labour market flexibility and employment security. There can be no doubt that overall objective is to prevent discrimination and to prevent “abuse”. In recognising the overall objectives and intent I have also to accept that the use of fixed-term contracts has not eradicated and that they can continue to be a feature of employment which can suit both employers and workers (para 8 of the General considerations of the Framework Agreement).
Background:
This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (miscellaneous Provisions) Act 2020 and SI 359/2020 which said instrument designates the Workplace Relations Commission as a body empowered to hold remote hearings pursuant to Section 31 of the Principal Act. The said remote hearing was set up and hosted by an appointed member of the WRC administrative staff. I am satisfied that no party was prejudiced by having this hearing conducted remotely. I am also satisfied that I was in a position to fully exercise my functions and I made all relevant inquiries in the usual way. In response to the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021 ]IESC 24 (delivered on the 6th of April 2021) I can confirm that the within hearing was open to the public so as to better demonstrate transparency in the administration of Justice. I additionally informed the parties that pursuant to the Workplace Relations (Miscellaneous Provisions) Act, 2021 coming into effecton the 29th of July 2021 and in the event that there is a serious and direct conflict in evidence between the parties to a complaint then an oath or affirmation may be required to be administered to any person giving evidence before me. I confirm that I have administered the said Affirmation as appropriate. It is noted that the giving of false statement or evidence is an offence. |
Summary of Complainant’s Case:
The Complainant was not represented and made her own case. At the outset, the Complainant made an Affirmation to tell the truth. The Complainant relied on the submission outlined in the Workplace Relations Complaint Form and I was also provided with supplemental documentary evidence (primarily made up of emails sent between the parties) in support of the Complainant’s case. The Evidence adduced by the complainant was challenged as appropriate by the Respondent’s Representative. The Complainant alleges that she has been discriminated against on the grounds of her Family Status and (by extension) her Gender. In particular she says that taking Maternity leave negatively impacted on her position and status in the workplace. The Complainant also made a claim under the Protection of Employees (Fixed Term) Work Act 2003. Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. |
Summary of Respondent’s Case:
The Respondent had full representation at this hearing. The Respondent entity was represented by it’s two Directors. The Respondent provided me with a written submission and supporting documentation. All evidence was heard following an Affirmation. The Respondent evidence was challenged as appropriate by the Complainant. The Respondent rejects that there has been discrimination and does not accept any contravention of Employment Rights as protected by statute. Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.
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Findings and Conclusions:
I have carefully listened to and considered the evidence adduced in the course of this hearing. The Complainant commenced her employment with the Respondent company in and around 2016. The Respondent company is in the business of providing motivational and educational slimming classes across local communities. The Respondent trains up class leaders who tend to operate as self-employed Franchisees, setting up weekly classes which clients then attend. The Complainant herein was employed directly by the Respondent and whilst she did host classes (3 to 4 a week) she was also part of the core team with duties to be performed from the Respondent head offices in Dorset Street. The rate of pay was circa €17.00 per hour and the Complainant was working about 20 hours per week. The gross salary was €17,680.00. I understand that over a period of time the office work fell away and the Complainant’s hours were reduced by mutual agreement to 10 hours at about €17.00 per hour. She was conducting two classes. Each physical class hour requires preparation, advertising and follow up. The Complainant had gone out on maternity leave in and around May of 2019. The Complainant was obliged to stay out of the workplace for longer than expected because of ongoing health issues which persisted after the expiration of the statutory maternity leave. The Complainant was due to return to work in March of 2020, but the Covid pandemic closed the Respondent activity down. The Complainant was out on sick pay initially. In and around September 2020 the Complainant met with MA and FG (from the Respondent company) to discuss her return to work. The Complainant had already told them that whilst she was pregnant again, she was anxious to get back to work and work through to the due date as she had previously done. MA and FG explained that there were very few classes being conducted at that time and they had no work for her, and the Complainant stated that she accepted this fact. In effect the Complainant was now on lay-off and became entitled to the PUP payments being afforded to employees out on lay-off as a result of the pandemic. The Complainant went out on maternity leave in December 2020 and was due back to work in June of 2021. The Complainant contacted her Employer at the end of June 2021 looking for advice on what might be available. At this point there were still very few (if any) face-to-face classes, and the Complainant had no clear idea of what work might be available for her to do. The Complainant did suggest that if she could not work her contracted hours, she might go back on the PUP payment. The Complainant had a number of follow up calls with her Employer and by the 4th of August she had confirmed that she would be able to do one in-person class and one zoom class (for her Contracted ten hours) whilst her Employer indicated that she should be able to do 2 in-person classes and one zoom given the number of Contracted hours otherwise the suggestion was that she should take fewer hours to do two classes. Ultimately the Complainant felt that she would be happy to take the two-class option to be performed in 6 hours. The Complainant was still getting paid at a rate of €17.50 per hour but there were generally less hours available as potential clients were not returning to the in-person class setting. So on this understanding, the Complainant set about securing the venue and contacting the potential client base to start the ball rolling. The Complainant was anxious to get back to work as she was not in receipt of maternity or PUP or anything at this time. Subsequently there was talk of there only being one class available for the Complainant. The Employer then provided the Complainant with a letter of agreement to be signed and returned but the Complainant was not happy with the seemingly new terms and conditions contained therein. This included Contract reviews and target numbers which was not something the Complainant had had to deal with previously. Also, setting class attendance targets while there was still a pandemic on seemed unfair to the complainant. Time Limits for achieving targets was also now inserted. The Complainant did not want to sign up to something, when she had no idea if it could be achieved. None of this had existed in her 2016 Contract of Employment. Amidst the Employer’s soothing language concerning assistance and room for agreement the Employer also sent an updated Contract of Employment which purported to set a start date of September 2021 (discounting her start sate of 2016), with a preliminary probationary period. The Complainant could see that her service with the company was to be lost. The Complainant queried this, and by way of response the Respondent confirmed that the complainant had not been giving classes since May of 2019 and was meant to have been back to work post Maternity leave in November 2019. The Respondent does not reference the fact that there was an intervening global pandemic as well as two tranches of protected leave brought about by pregnancy. On the 9th of November the Complainant wrote a final email to her Employer. This is some four and a half months after she was meant to have come back to her employment. At this time, she poses the not unreasonable question as to how she had gone from being paid ten hours for two classes before her Maternity leave to an offer of three hours for one class? The Complainant also seeks to have the terms and conditions of her 2016 Contract of Employment fully respected. The Complainant points out that her Employer appears not to have taken any regard for the fact that she was out on maternity leave. The CEO (FG) gave evidence on behalf of the Respondent company. She described how Covid brought their business model to a standstill. Of 88 leaders only 8 managed to get zoom classes up and running. The number of classes per week dropped from 250 to 20. When the Complainant was due to return to work in the summer of 2020 there was very little work available for her as the only full-time employee of the Respondent company. As it happens, the Complainant had to go on early maternity leave as there were health issues, and she was therefore not expected back until June or July of 2021 at which time it was hoped things would be returned to normal. FG explained the Respondent class schedule was nowhere near normal by mid-2021. There was social distancing and mask wearing and sporadic closures and lockdowns. FG said she and her co-Director wanted the Respondent back, but the landscape was entirely different to what it had been before. She gave evidence that the company’s finances were also in an already precarious state. FG felt that of the ten hours previously being worked by the Complainant some of that was spent in the office which was no longer a requirement. When the parties hit on two classes for 6 hours that seemed a fair option. There was a requirement that the complainant get trained up on the Zoom option. FG said that the Complainant had requested Saturday only classes as she had help form her husband at home. However, Saturday does not work well with this clientele. It is noted that the second Director also gave evidence though it largely chimed with that of FG. The evidence discloses that the Complainant had three babies in quick succession. At the end of her third maternity leave the Complainant wanted to come back to work on the same terms and conditions she had worked previously. However, at the time that she was returning, her Employer’s business was decimated by Covid pandemic. The Employer was offering her reduced hours in the circumstances. To my mind there was nothing inherently wrong with that as many, many people coming back to work were having their terms changed (sometimes temporarily) and indeed the parties herein had agreed a way forward on hours. It is worth noting that there is nothing from the evidence and correspondence to suggest that the Complainant was anything other than an excellent employee and that the Employer was keen to bring her back into the fold and train her up in the new world of online classes etc. The Complainant was prepared to accept that cut in hours. However, the Complainant was not happy with the proposed new Contract of Employment. She was understandably wary about newly introduced terms on the payment of commissions, and attendee numbers and time limits and reviews. The biggest problem of course lay in the fact that the Respondent had prepared and delivered a Contract of Employment that did not recognise her Service to date, and which proposed to re-start the clock with a built-in probationary period. Quite rightly she was concerned that if she failed to hit her new targets she could be summarily fired with no recognition of service, no redundancy and no rights under the Unfair Dismissal legislation. FG accepted in the course of her evidence that the proposed Contract was a mistake and that she had not taken legal advice on same. At the time – back in the summer of 2021- the Complainant was trapped. She could not go forwards with a new Contract and was not then welcome to return back to her old terms and conditions. The proposed changes meant she could not continue with her employment which was now being changed beyond recognition. I would say that FG came across as a good Employer and was acknowledged as such by the Complainant. However, certain language in the course of their correspondence was ill-judged. So statements such as such as having to accommodate “all around your lifestyle needs” and “you last worked 1st of May 2019 – which is over two years ago” verged almost on being critical of the Complainant’s having had children. It is greatly surprising given the nature of the Respondent’s enterprise (which perhaps garners more enthusiasm amongst women than men), that there would be so little understanding of how important it is that women should not be allowed to fall behind or otherwise disadvantaged in the workplace because they take Maternity leave for their health, and for the health of their baby. It is clear from evidence that the Complainant has made out her Prima Facie case of Gender and Family Status discrimination. The Respondent has failed to demonstrate that there has been no infringement of the principle of equal treatment. It is also noting that the Complainant is further expressly protected by Section 6(2A) which specifically deals with pregnancy related issues and which states:
“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.”
It is worth noting that the Complainant would also have had a cause of action pursuant to Section 26 of the Maternity Protection Act 1994 which enshrines the employee’s right to return to the role she had prior to taking Maternity leave or to be returned to suitable alternative work. The Complainant loses nothing by instead highlighting these issues under the Employment Equality legislation. Lastly, I can confirm that the Complainant did not give evidence or otherwise pursue a claim under the Protection of Employees (Fixed-Term Work) Act, 2003. I am satisfied that the complaint herein was misconceived and was never a part of the issues which arose between employer and employee. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
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.
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 CA-00047981-001 – The Complainant was discriminated against in the course of her employment And I make an award of compensation for the effects of the acts of the discrimination in the amount of €9,000.00. Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003 CA-00047981-002 – This complaint is not well founded and therefore fails.
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Dated: 03rd January 2023
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Key Words:
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