Complainant

Respondent

Anonymised Parties

A Quality Manager

A Company

Representatives

Siobhan McGowan, Alastair Purdy & Co

 Peninsula

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00046483-001

01/10/2021

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

CA-00046483-002

01/10/2021

The complaint was received by the Workplace Relations Commission on 1 October 2021.

The parties exchanged written submissions in advance of the hearing together with a booklet of documents.

At the hearing the Complainant appeared with her Solicitor and swore an Affirmation.

It was the Complainant’s evidence that she was employed since 1 November 2011 and worked as Group Quality Manager with the Respondent. She earned a gross wage of €3,137 per month.

CA-00046483-001 and CA-00046483-002

It was the Complainant’s evidence that she was not allowed to return to work in her position of Group Quality Manager following the expiry of her maternity leave by the Respondent.

 The Complainant had a call with HR around her return to work following maternity leave in April 2021. The Complainant put forward the suggest of relying on the extended maternity leave of 16 weeks to allow her return to work after her 26 weeks maternity leave ended but on a part time basis. The reason for this request was due to difficulty obtaining childcare services as a result of the Covid19 pandemic in May 2021.

In response that call with HR she received an email from the CEO of the Company on the same day , 7 April  2021. The CEO stated in his email;

“No 1 really do not want to lose you given your history and experience and knowledge of how we operate but I wonder if we should change your roles that enables more flexible working and use your skills. The issue with QA manger and having three sites is the need to travel which with a little one is not very practical.”

The email continued with suggestions around her role and confirms her reporting line to the CEO, as was the case prior to her maternity leave. The Complainant did respond saying she would consider it. She did so and accepted the offer to return to a more flexible role on a part time basis. It was the Complainant’s evidence, that at all times, she was of the belief this part time flexibility being offered by the Respondent as a short-term solution only and her role would be the same regardless.

On 27 April 2021, the Complainant gave evidence of a phone call with HR wherein she stated she was told of a change in reporting lines, and she would not be reporting to HR in her new role as “Office Manager”.

The Complainant upon returning from maternity leave on 4 May 2021 received a letter offering her 300 shares from the Respondent. It was her evidence that this was a shock as it was significant less what she expected following discussion at a management meeting she attended on 29 April 2021 as she was a member of management. There were four categories of share option allocations discussed:

(1) Management – 3,000 shares ,

(2) People can’t afford to lose – 1,500 shares,

(3) People don’t want to lose – 750 shares

(4) other- 300 shares.

It was her evidence that an allocation of 300 shares not only was significantly less than the management allocation of 3,000 shares but also placed her at the bottom of the list when she had contributed to the company since the first day. It was the Complainant’s evidence that her members of management received higher stock allocations than her, albeit not 3,000 as there had been a reconsideration of the number of shares allocated. However, it was an administrative assistant who received the same amount as the Complainant. 

On 7 May 2021 the Complainant gave evidence that she received an email from HR with a letter confirming her change to her employment contract with a pre-signed copy enclosed. On 13 May 2021, the Complainant responded stating she had concerns and attaching a detailed letter. HR replied by letter dated 17 May 2021 asking how she would like to proceed with her grievance to which the Complainant advised she would prefer to deal with it informally.

A meeting between HR and the Complainant took place on 20 May 2021 with several emails relating to that meeting and minutes being exchanged thereafter.

On 15 June 2021, the Complainant is advised by the CEO that the Quality role is to be divided with another employee who is based in the UK leaving the Limerick site only to the Complainant. The reason the CEO states is “Because effectively you cannot be darting between offices and you are at present working part time..”

She raises her concerns around this division of the role and advises that the current travel restrictions due to Covid19 are limited everyone’s ability to travel. The CEO does not respond to this point but states that the other employee is “keen to take on more responsibility” and it “should work as we are not making very much at present”

The next morning on 17 June 2021, the CEO sent out a company announcement advising of the split in the Quality function. The Complainant said she was left feeling shocked at this announcement.

A formal grievance was raised by the Complainant on 14 July 2021 as she felt she waws not getting an adequate response from senior management to her concerns. A third party was engaged to carry out the investigation which resulted in her 5 grievances all being unsubstantiated. An appeal was heard in October 2021 by a colleague who reported to the CEO and was formally at the same level as her. She raised issues of bias but did follow the process. The appeal affirmed the early outcome of the grievance investigation.

In summary, the Complainant stated in her evidence her role went from being a member of the senior management team reporting to the CEO to a role which left her reporting to a level below and dilution of her duties to one site compared to responsibility for all 4 sites. At no stage did she ever state she was unable to travel, it was told to her.

Legal Submissions

The Complainant relied on HR Manager v Aviation Recruitment and Staff Support Agency, ADJ-00022909 highlighting the Adjudication Officer’s finding;

“I find on the evidence submitted that the complainant did not return to the same job or under the same contract as required by section 26 of the Act. That job and contract dated 9 August 2017 situated her as the most senior HR person in Ireland with a direct reporting line to the MD, whereas the job to which she was expected to return saw her relegated to the position of one of three HR Business Partners reporting to a more senior HR Manager, and which left her at a further degree of separation from the MD. This was a role created while she was on leave and for which she received no invitation to apply. While her title was changed in October 2017, she was not advised of any other changes in her terms and conditions. The reduced managerial function, the exclusion from the senior leadership team, the lack of an invitation to apply for the new HR position means that the respondent failed to return her to “the contract of employment under which the employee was employed immediately before the start of that period…and under terms and conditions

(i) not less favourable than those that would have been applicable to the employee, and

If she had not been so absent from work.”

The Adjudication Officer went on to decide; “I do not find that the compliant retained her strategic role or influence. She lost it.”

Addressing the point of issuing a dual claim under both the Maternity Protection Acts and the Employment Equality Act the Adjudication Officer found:

“Section 101 of the Employment Equality Acts set out specific circumstances restricting a complainant from following dual avenues of redress under, inter alia, those Acts and Unfair Dismissals legislation. It does not place any restriction on claims which may also have a course of redress under the Maternity Protection legislation, in particular, requiring a complainant to choose one avenue of redress over the other”

The decision in Financial Administrator-v- Telecommunications Provider, ADJ-00015172 the Adjudicator states:

“I also accept that the full diminution of her role was never formally explained to her.”

“I have to accept that the Complainant was not given a job description which would afford her any comfort. More generally there seems to have been an attitude that the Complainant should be glad to have an assurance that she would be retaining her terms and conditions and that the nuts and bolts of her day to day work would be worked out over the course of time.”

The Respondent choose not to attend the hearing. There was reference to one witness being located in Hong Kong and could not travel due to Covid19 restrictions with a second witness located outside of this jurisdiction also.

While the Respondent’s representative did attend, in the absence of her client’s attendance to give sworn evidence a defence simply cannot be considered to the complaints. Similarly, the submissions filed on behalf of the Respondent cannot be taken into account.  

Respondent’s decision not to attend

I find it wholly disrespectful to the Complainant, a current employee, that the Respondent choose not to attend at the very last minute yet sought to have their position considered. For the avoidance of any doubt, the Respondent’s submission has not been considered in this decision. Any purported excuse around travel restrictions is rejected in a world where remote hearings offer all parties an opportunity to attend at a hearing regardless of their geographic location. The irony is not lost on the unavailability of the witnesses to travel given the CEO’s comments on the Complainant’s ability to travel for her role.

Anonymised decision

Both sides were given an opportunity to make submissions on whether the decision should be anonymised. After carefully considering the departure from the principle of open justice, I find that due to the particular circumstances of this case and in particular the fact the Complainant is remains an employee of the Respondent it would be inappropriate to name the parties.  

CA-00046483-001 and CA-00046483-002

Council Directive 2002/73/EC of 23 September 2002 amending Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards to access to employment, vocational training, and promotion, and working conditions states:

“A woman on maternity leave shall be entitled, after the end of her period of maternity leave, to return to her job or to an equivalent post on terms and conditions which are no less favourable to her and to benefit from any improvement in working conditions to which she would be entitled during her absence.".

Section 6.2A Employment Equality Act1998 (As Amended) recognises that discrimination on the gender ground shall be taken to occur where; “on a ground related to her pregnancy or maternity leave, the woman employee is treated in a manner which is contrary to any statutoryrequirement less favourably than another employee is, has been or would be treated”

Furthermore, there is a statutory requirement where an employer must comply under Section 26 Maternity Protection Act 1994 which states that a woman returning from maternity leave is entitled to return to work;

“under terms and conditions not less favourable than those that would have been applicable to the employee if she had not been so absent from work”

Section 85A of the Employment Equality legislation sets out the burden of proof which applies to claims of discrimination.

I accept the Complainant’s evidence in its entirety and find that she has discharged the burden of proof to establish a prima facia case of discrimination. It is also noted that there was no defence put forward at the hearing by the Respondent. Furthermore, I found the Complainant to be clear in her evidence. Based on the evidence before me I note that she not only acted reasonably but also with the utmost professionalism in her interactions with her employer despite what must have been a demoralising position to be in.

I find based on the Complainant’s evidence of the diminished role of Quality Manager the role she was given in May 2021, the CEO’s email of 7 April 2021, change in reporting lines outlined by HR in May 2021, the reduction in her share allocation together with the fact the Respondent felt this was such a different role that it necessity a revised contract of employment , that she returned to a less favourable job at the end of her maternity leave.

I find the CEO took it upon himself to decide, without consultation, as to what would be best for the Complainant and her family. The fact there were worldwide travel restrictions due to the Covid19, highlighted and repeated by the Complainant, meant that she was unable to travel regardless of her personal circumstances, yet this does not appear to be acknowledged by the Respondent. This is particular evident from the Respondent’s decision in June 2021 to divide her role with another colleague despite her on going grievance around what was essential a demotion following her return from maternity leave.

These events occurred against a backdrop of Covid19 when the Irish Government restrictions at the time only permitted 50 mourners at a funeral, a wedding reception of 6 people or where retail was only allowed to reopen after the Complainant was due to return to work. The pandemic was entirely outside the Complainant’s control, yet at no stage did the Respondent seek to work with the Complainant in her request to return to work in a manner which was fair to her employer considering her family responsibilities where there was no suitable full time childcare option available to her. This is objectively clear from not only the Complainant’s own evidence but the correspondence between the parties at the time.

For the avoidance of doubt, I have carefully considered Section 27 (1);

“Where an employee is entitled to return to work in accordance with section 26 but it is not reasonably practicable for the employer or the successor to permit the employee to return to work in accordance with that section, the employee shall, subject to this Part, be entitled to be offered by the employer, the successor or an associated employer suitable alternative work under a new contract of employment

(2) Work under a new contract of employment constitutes suitable alternative work for the purposes of this Act if—

(a) the work required to be done under the contract is of a kind which is suitable in relation to the employee concerned and appropriate for the employee to do in the circumstances

Section 27 has been discussed in detail in Bolger, Bruton and Kimber; Employment Equality Law 2nd Ed. 2022 with reference to the EAT case of Taghe v Travelnol Lab (Ireland) LtdP14, 1986; (1989 8 J.I.S.L.L 124 ; where the word “suitable” should be interpreted “subjectively from the employee’s standpoint, including the general nature of the work which suited her and her domestic considerations”.

This is the nub of this entire case, the role given, not offered, to the Complainant upon her return to work from her period of protective leave in May 2021 was, from her viewpoint, never suitable. This is evidenced by her consistence, clear communication of her concerns with the changes to her role to the Respondent. At no stage can the Complainant be accused of delaying in voicing her objections. Yet instead of addressing these concerns, the Respondent sought to further lessor her position in the company by its unexplained decision to significantly reduce her share allocation afforded to what can objectively be categories as the lowest rank in the company and further diluting her role in June 2021 with the announcement that she would only be responsible for the Limerick site.

Redress

Despite the fact there have been protections around maternity leave and the return to work for women in this jurisdiction since Maternity Protection of Employees Act 1981, this case is a further example of the ongoing breach of women’s rights. It is simply not enough for employers to be seen promoting equality in the workplace, but the law requires that this translates into their actions. 

CA-00046483-001

Section 32 (2) of the Maternity Payment Act 1994 provides for redress in the following terms:

(2) If a decision or determination under subsection (1) is in favour of the employee then, without prejudice to the power to give directions under that subsection, the rights commissioner or Tribunal may order such redress for the employee as the rights commissioner or Tribunal considers appropriate, either or both of the following—

(a) the grant of leave for such period as may be so specified;

(b) an award of compensation in favour of the employee to be paid by the relevant employer.

(3) Compensation under subsection (2) (b) shall be of such amount as the rights commissioner or Tribunal deems just and equitable having regard to all the circumstances of the case but shall not exceed 20 weeks' remuneration in respect of the employee's employment calculated in such manner as may be prescribed.

(4) In this section “remuneration” includes allowances in the nature of pay and benefits in lieu of or in addition to pay.”

I am awarding the Complainant the compensatory sum of €14,478.46, the equivalent of 20 weeks wages, as being just and equitable having regard to all the circumstance of the case. In addition, regard is given to the Complainant’s evidence that despite being on protective leave and absence from work, she was expected to attend regular meetings with the Respondent on Teams from January 2021 to May 2021 and answer on average 1 work email a day during this time. I find this to be a further breach of the 1994 Act.

CA-00046483-002

Section 82 (4) of the Employment Equality Act (as amended) provides for redress.

(4) The maximum amount which may be ordered by the 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

(iii) €40,000”

In finding that the complaint is well founded and considering the distress and indignity of the repeated and ongoing effects of discrimination on the grounds of gender and family status by the Respondent towards Complainant, I award compensatory sum of €48,840.32. This award should be viewed as a deterrent from future breaches of the Employment Equality legislation.

CA-00046483-001

I find the complaint to be well founded and award the Complainant the compensatory sum of €14,478.46.

CA-00046483-002

I find the complaint to be well founded and award the Complainant the compensatory sum of €48,840.32

Maternity Protection Act – Discrimination- Equality – Section 26 and Section 27 of 1994 Act- Maternity Protection – Gender and Family Discrimination