Worker

Employer

Anonymised Parties

A Computer Operator

A University

Representatives

  Self-represented

Muireann McEnery IBEC

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00039562-001

02/09/2020

The Worker commenced her employment with the Employer on 15 June 2013.

The Worker referred her dispute to the Director General of the WRC on 2 September 2020. The dispute the Worker wished to be investigated related to the Employer’s failure to accommodate her return to work following a career break.  

Subsequently, on 23 April 2021, the Worker referred to the Director General of the WRC a claim pursuant to the Employment Equality Acts, 1998, as amended, alleging that she was discriminated against by reason of her gender, and that the Employer treated her unlawfully by discriminating against her in the context of promotion.

The Worker’s dispute is to some degree based on the same facts that are contained within her complaint that was separately referred to the Director General pursuant to the Employment Equality Acts and was dealt with separately as appropriate. This recommendation will, therefore, deal with the matters that fell outside the scope of my investigation under the relevant statutory framework that the Worker has already sought redress in respect of and will not revisit other claims raised in the Worker’s submission.

The Worker submits as follows.

In her WRC complaint form, the Worker submitted that she is employed as a Computer Operator, she is a permanent staff member.

The Worker is currently waiting to return to work after a two-year career break. She was due to return to work at the beginning of July 2020 and had a signed agreement of same.

On 28 April 2021 the Worker furnished a written statement as follows.

The Worker worked as a Computer Operator in Service Engineering, IT Services, Information Technology Division (‘ITD’) since 2013 and she was made permanent in 2015.

In August 2016 the Worker went on maternity leave, between February 2017 and June 2018 the Worker was on unpaid maternity leave. From July 2018 to June 2020 (2 years) the Worker was on career break.

The Worker submits that, in May 2018 ITD management instructed the Computer Operators in ITD to complete a job evaluation form that the Computer Operator role should be Desktop Analyst Support (‘AP1’). The Worker was on unpaid maternity leave and was the only Computer Operator not informed. The job evaluation was suspended by the Department of Education and Skills.

During this time, there was a AP1 post advertised which all four Computer Operators including the Worker applied for. The Worker submits that she was the only Computer Operator not invited for interview and excluded from promotion, the other three Computer Operators were regraded/ promoted to AP1. The Worker further submits that Computer Operator Job Description is the exact same as the Desktop Support Analyst Job Description.

The Worker submits that she was due to return to work from the career break at the beginning of July 2020. The Worker notified the Head of Service Delivery on 25 March 2020 (3 months advance notice) of her intention to return to work. The Worker received an email/letter from HR Officer stating:

‘Unfortunately the University is not in a position to accommodate your return at this time, as currently there are no appropriate vacancies within your Department. The business needs and responsibilities of Department have evolved since the commencement of your leave and as per policy, “delay in returning to duty can be expected”.’

The Worker submits that the Employer is now saying that the Computer Operator role no longer exists but the very action taken to cease its existence was an act of discrimination against the Worker and a breach the EU Equal Treatment Directive. ITD continue to hire new staff from a variety of sources while ignoring the fact that the Worker is a permanent staff member waiting to return to work. According to section 5 of the Career Break Policy, the Worker should get first offer of vacancies as and when they arise.

Career Break Policy:

“5. Return to Duty

5.1 Academic staff and staff returning to the [Employer] after a career break will be assigned to vacancies as and when they arise in their grade and department.”

The Worker submits that the Employer is refusing to consider her for any roles, redeployment or retraining and informed her that to get back she would need to apply for vacancies on the website in the same way as the public would do.

The Worker submits that she was to start her maternity leave in September 2020. She emailed HR in July 2020 and they replied that she would have to go the Department of Social Protection, even though the Maternity Leave Policy states that it is the policy of the Employer to pay employees their normal salary in respect of the 26 week period of maternity leave.

Breaches of recruitment policy

On 6 March 2023, the Worker furnished an additional submission wherein she made a number of assertions regarding the alleged breaches of the Employer’s Policy for the Recruitment of Staff.

The Worker alleged that the Policy provides that “the Competition Owner should strive to have gender balance in their final pool of candidates for all competitions”. The Worker alleged that eight candidates were selected for interview, seven male and one female.

The Worker further alleged that the Policy provides for various levels of the constitution of the Board. The Worker alleged that there was a breach of both the Policy for the Recruitment of Staff and the Procedures for Recruitment/Appointment of Support Staff.

The Worker further alleged that the Policy provides that “The shortlisting will be attended by the competition owner and at least 2 others from the interview board”. The Worker asserted that this was not the case as a named board member did not furnish Shortlisting Scoring Form.

The Worker further alleged that no conflict of interest was declared by the members of the Selection Board.

At the adjudication hearing, the Worker said that all her leave was approved by the Employer.

She said that in April/May 2018 the IT service began regrading of the Computer Operators and she was excluded. She felt left out and took a career break as a result. The Worker said that she queried the issue with HR. As there were a lot of promotions, she thought she would get one as well. She was the only Computer Operator left out. She asserted that the Desk Support Analyst position is considered a higher grade but has exactly the same job description, only the salary is different.

The Worker said that she informed the Employer that she would like to return to work but was told there were no vacancies. The Worker said that Computer Operators were taken on all the time but on a temporary basis or agency workers.

The Worker said that when some of the AP1 grade left, the roles were advertised as AP1 ones but she was not offered one. She unsuccessfully applied for an AP1 role in 2018 and for another two roles in May 2021 and March 2022 (refusal letters dated 17 May 2018, 19 May 2021 and 22 March 2022).

The Worker said that a job evaluation of the Computer Operator role commenced but it was stopped by the Department of Education. There were four Computer Operators, two male and two female (including the Worker).

The Worker said that she was told by a colleague that all Computer Operators would be upgraded. When AP1 roles were advertised, she was the only Computer Operator who did not get the job. She then applied for other roles such as AP2 but was not successful.

The Worker contended that the composition of the board was incorrect.

The Worker further contended that the document entitled “History of the Post/Position” incorrectly informed the Recruitment Sub-Committee that there were only three Computer Operator posts. The Worker said that the plan was that all Computer Operators would be upgraded to AP1. The Recruitment Sub-Committee was told about three only, she was the fourth person and was not included in the chart. The Worker said that she was deliberately excluded because of discrimination.

The Worker said that she was refused her maternity leave pay in September 2020. She was also not entitled to the State maternity pay.

The Worker said that there were three Computer Operators, two males and a female with grown up children. The Worker said that she was the only one with the possibility of a further maternity leave.

The Worker confirmed that she did not seek to come back to work immediately after her maternity leave. She said that she took a career break because she was discriminated against.

The Worker said that she was refused interviews. It was put to her that she was not suitably qualified. The Worker said that in 2015 she applied for a Computer Operator’s position and was successful. The AP1 role she applied for in 2018 was a carbon copy of her previous job.

It was put to the Worker that there was a requirement to have third level qualifications. The Worker replied that she had level 7 qualification. She said that the other female Computer Operator told her that she did not have third level qualification. She also said that a male colleague had a diploma, which was equivalent of her level 7. None of the AP1 had qualifications higher than the Worker.

It was put to the Worker that clause 5.2 of the Career Break Policy provides for delays. The Worker said that she saw the clause but IT department has massive level of turnover of staff. The Worker said that, in her view, it should never be an issue.

It was put to the Worker that she did not want to return to her role, she wanted a higher grade. The Employer put it to the Worker that her role does not exists anymore. The Worker said that she wanted to return, when the transition happened in April/May 2018 she was excluded.

It was put to the Worker that the AP1 role was a completely different role, it was not regrading, it was restructuring which was approved and then applications were invited for the AP1 role. The Worker said that the AP1 role was a carbon copy of the Computer Operator role.

IBEC, on behalf of the Employer submits as follows.

The Employer’s position is  that he Career Break Policy is very clear that a return to post may be delayed as appropriate vacancies may not exist. The role the Worker occupied prior to her departure on unpaid leave no longer existed when she sought to return to same as a result of an extensive restructuring within the IT department.

Background to the Worker

The Worker joined the Employer in July 2012 on a Job Bridge Internship. She was issued a multi-annual contract on 28 November 2015 as a Computer Operator.

The Worker has been on leave from her post in ITD as follows:

Maternity leave and 16 weeks of unpaid leave: 1 August 2016 – 31 May 2017 Special unpaid leave: 1 June 2017- 2 July 2018 Career break: 3 July 2018 – 30 June 2019 and 1 July 2019 – 31 June 2020

Background to the complaint

ITD restructure and how it affected the Computer Operator Grade:

Towards the latter end of 2018 the IT Division (‘ITD’) went through a restructure and the Computer Operator grade was retired for second level IT support queries and the AP1 grade would now deal with such queries.

The Employer exhibited information that was supplied to the Recruitment sub-committee for their consideration for the transition of Computer Operator grade positions to AP1 positions.

The restructuring was approved and the AP1 posts were advertised. All ITD employees who were employed at the Computer Operator grade, including the Worker, applied for these posts. The Worker was not successful in securing one of the AP1 posts through the recruitment competition.

Communication with the Worker regarding her request to return to work from career break

There has been ongoing email and telephone correspondence with members of the HR team and the Worker since May 2020 to date in relation to the Worker’s request to return to work from career break.

The Worker is aware that the Computer Operator multi-annual post which she previously held no longer exists since the ITD restructure.

At all times the Worker has been advised that her request was being considered in line with the Career Break Policy (exhibited at the hearing). Section 5.2. of the Policy states:

“delay in returning to duty can be expected, as appropriate vacancies may not exist at the completion of the career break period; in such an eventuality, the [Employer] will not have any obligations to the academic staff or staff member.”

The Worker has asked on a number of occasions for a definitive timeframe for a return to work. However, as there are currently no multi-annual positions at Computer Operator grade in ITD, nor anywhere else in the Employer organisation, the Employer was and remains unable to give a definitive return to work date.

The Worker has been advised that, in line with the Career Break Policy, “vacancies arising when a staff member takes a career break shall be filled in a manner best suited to the needs of [the Employer] and in accordance with the recruitment and selection strategies in operation within [the Employer].” Therefore, should she wishto be considered for future vacancies that arise, she may do so by accessing the link to vacancies site of the Employer’s website.

Query regarding newly appointed individual in ITD

The Worker mentioned in her letter to the WRC that a new person started in ITD services recently. In an email to HR on 31 August 2020, the Worker stated that a “new person by the name of [N] started in IT Services on the 24th of July, can you check if his status is computer operator and if so why wasn’t I given that role first as I am currently waiting to return.”

As per the Employer’s email dated 10 September 2020 “In accordance with GDPR legislation I am unable to comment on any specific individual. However, what I can confirm is that in line with existing practice withing ITD, undergraduate students are taken under the Cooperative Education Student Work Placement Scheme and some Post Graduate Students are also taken on, Student placement terms and conditions govern such appointments and in all cases the term of these placements does not extend beyond 51 weeks.” This is in line with the restructuring which took place in ITD.

A document outlining the history of the post, a job description for the post of Computer Operator as advertised in 2015 when the Worker applied for the post, and the job description for the Post-Grad Computer Assistant post (which since the reorganisation deals with level 1 queries) were exhibited at the hearing.

Summary

The Employer submits that, since the  commencement of the Worker’s leave and subsequent career break the business needs of the ITD have evolved, thus impacting the role of the Computer Operator post which was the Worker’s post.

The Employer submits that there are currently no multi-annual post vacancies at Computer Operator grade in the ITD team nor in any other department. The Worker’s request to return to work following her career break is currently being considered in line with the Employer’s Career Break Policy. Unfortunately, the Employer at this point in time is not in a position to give a definitive return to work date. However, the Employer would strongly encourage that the Worker seeks out suitable opportunities which may arise withing the Employer organisation by accessing the vacancies which are posted on its website.

The Employer submits that the Career Break Policy is very clear that a return to post may be delayed as appropriate vacancies may not exist. The ITD went through a significant re-structure during the Worker’s absence effectively removing the grade she was on prior to her leave.

The Worker is unreasonably seeking to return to grade AP2 which is two grades higher than the role she occupied prior to her departure. The Worker does not have the skills or qualifications for this grade and has been unsuccessful in her applications for a number of roles which are outside of her skills and qualifications. As a public sector employer, the Employer’s recruitment process is fair and transparent and all roles have to be advertised and candidates brought through a fair recruitment process.

Conclusions

The Employer submits that the Worker’s role ceased to exist while she was on career break.

At the adjudication hearing, IBEC submitted on behalf of the Employer that a job evaluation started but was stopped by the Department of Education.

In February 2018, one AP1 position became available. A competition was advertised, interviews were held on 7 June 2018 and the Worker’s colleague got the job. The Worker applied but was not shortlisted. Subsequently, on 17 August 2018, three other people from the February 2018 competition panel were appointed to a grade of AP1.

Regarding the refusal of maternity leave pay, the Employer submitted that the period of career break is unpaid and not reckonable for pension purposes. The Employer submitted that ultimately the Worker was on “suspension”. As there was no role for her, she de facto remained on career break.

The Employer clarified that there are approx. 80 employees in the IT Department, there are some 10-13 students on a part-time basis.

Regarding the Worker’s assertion that in the document “History of the Post/ Position” she was excluded and only three Operators were mentioned, the Employer submitted that the Worker was on a career break, she was not treated as an employee of the Employer.

The Deputy Director of the ITD confirmed that AP1 and Computer Operator jobs are the same bar the salary. He said that there were some employees gone and recruited in the IT Department, there was movement, but the roles were not suitable for the Worker.

In relation to the Worker’s allegations regarding the breaches of the Recruitment Policy, the Employer submitted that the policy is clear that “strive to have gender balance”. This is not always possible depending on the pool of candidates etc.

In relation to the Worker’s assertion that a named board member did not furnish Shortlisting Scoring Form, the Employer furnished email from the named board member with their (anonymised) shortlisted candidates.

In relation to the alleged conflict of interest, the Employer stated that none of the Board members disclosed conflict of interest.

Additional submissions

On 1 March 2023, the Employer furnished a summary regarding the 2018 Desktop Support Analyst (Analyst Programmer 1) roles. The Employer submitted that all of the steps taken were carried out in accordance with the Procedure for the Recruitment/Appointment of Support Staff (2011), which was the procedure in force at the relevant time. A vacancy was advertised for the role of Desktop Support Analyst at the grade of AP1 with a closing date for applications of 13 March 2018. 59 applications were received, including the Worker’s. All applications were put forth for screening to ensure the minimum essential criteria were met in accordance with the Procedure (para 4.1).

34 applicants met the minimum criteria and were put forth for shortlisting, including the Worker. Each of the three members of the Selection Bard were asked to assess all 34 applications individually and to put forth their top eight candidates to be invited for interview (as per 4.2. of the Procedure).

The final shortlisting matrix was completed by assessing the 8 votes of each of the 3 members of the Selection Board to each candidate in the list of 34 applicants. This resulted in a pool of 8 candidates shortlisted for interviews, each having received two or three recommendations. No candidate receiving fewer than two recommendations was shortlisted. The Worker received a recommendation from only one of the Selection Board members and therefore did not progress to the interview.

Eight candidates were invited for interviews, which took place on 7 June 2018. The preferred candidate was offered and accepted the post.

Due to increasing demands, the recruitment of an additional three people to Desktop Support Analyst (AP1) roles were required. On 18 July 2018, the Recruitment Sub-Committee of the Executive Committee approved three additional vacancies at AP1 grade. These were filled from the panel of candidates from the March-June 2018 recruitment competition without the need for running an additional recruitment competition. This is a legitimate practice occasionally occurring and is in full compliance with the recruitment policy and procedures.

Other candidates interviewed and deemed appointable are always listed in rank order to be drawn from in the event that job offers are declined. Additionally, it is policy that where a Selection Board has deemed other candidate(s) suitable for appointment, the name(s) will be held on file for a period of 12 months from the date of interview. Should the position or a comparable position became vacant for any reason during this period, other candidate(s) deemed appointable would be considered for appointment in ranking order.

On 24 May 2023 the WRC received the Employer’s response to the mater regarding the 2018 recruitment competition for the role of Desktop Support Analyst (Analyst Programmer 1 (AP1) grade). The Employer submitted that the Employer procedures in effect at the time were the Procedures for the Recruitment / Appointment of Support Staff (22 November 2011). The Claimant has put forth a claim that the composition of the Selection Board was not compliant with the procedures. The Employer conceded that , it appeared that the Selection Board was constituted according to the Administrator – Senior Administrator level. However, as the minimum and maximum salary points of the Analyst Programmer 1 grade were greater than the minimum and maximum salary points of the “Senior Administrator” grade, the Selection Board should have been constituted according to the Executive Administrator – Senior Executive Administrator level.

The Worker was provided with the opportunity to comment, and she agreed with the Employer’s submission.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.

The Worker submitted two claims against the Employer, the within dispute and a complaint pursuant to the Employment Equality Acts, 1998 as amended. The Worker’s claims of discrimination on the grounds of her gender were addressed separately in a complaint referred to the Director General of the WRC pursuant to the Employment Equality Acts, 1998, as amended. This recommendation addresses only the matters surrounding the failure of the Employer to accommodate the Worker’s return to work that fell outside the scope of my investigation pursuant to the Employment Equality Acts. As the decisions regarding this matter are directly connected to the restructuring of the ITD this matter will be addressed in this recommendation.

There was no dispute that the Worker commenced her employment with the Employer in June 2013 as a Computer Operator. She was a permanent, full-time staff member.

The Worker availed of maternity leave from 1 August 2016 to 31 May 2017. She then availed of an unpaid leave between 1 June 2017 and 2 July 2018. Subsequently, the Worker availed of a career break from 3 July 2018 to 31 June 2020. She informed the Employer of her intention to return to work three months in advance, as per the Career Break Policy. As of the date of the hearing the Worker’s return to work was not facilitated.

There was no dispute that around February 2018 one AP1 role became available in the ITD. The role was a separate one to the regrading/restructuring process. A competition was advertised in February 2018 for the role. Interviews were held in June 2018 and Ms A (one of the Computer Operators) was selected as the most suitable candidate. The Worker applied for the role, she met the essential criteria but was not shortlisted for the interview.

It is well established policy of the WRC and the Labour Court of not seeking to put itself in the position of an interview board in order to second guess the outcome of the selection process.

In that regard, I am guided by the Labour Court recommendation in A University v A Worker LCR21333, where it said that:

“The Court has consistently adopted the position that it does not substitute its decision for that of an employer‘s recruitment or promotional panel regarding the merits ofa candidate for employment or promotion. The Court can only look behind a decision in relation to appointments where there is clear evidence of unfairness in the selection process or manifest irrationality in the result.”

While at the adjudication hearing, the Worker raised a number of alleged shortcomings in the competition process, I note that the Employer’s procedures allow for a review of “a recommendation of a Selection Board on ground of manifest departure from these operating procedures, which affected the outcome for the candidate”. The Worker did not instigate the internal process regarding her concerns. In that regard, I am guided by the Labour Court’s decision in Gregory Geoghan T/A Taps v A Worker INT1014 where it was held that where internal procedures provide for an internal process that deal with a matter in question “The Court is not prepared to insert itself into the procedural process in a situation where the dispute procedures have been bypassed.” Consequently, this recommendation will not address the Worker’s concerns regarding the alleged shortcomings of the competition process.

There was no dispute that in the early 2018 a regrading process of the Computer Operator role commenced. It was, however, stopped by the Department of Education. Following the abandonment of the process, the Employer commenced the restructuring of the ITD.

A document entitled “History of Post/Position”  that was furnished by the Employer to the Recruitment Sub-Committee outlined the Employer’s approach to the restructuring process.

The Employers states in the document:

“In the past there were three computer operator position within the IT Services group in ITD.”

The Worker argues that from this very first sentence the Employer provided incorrect information to the Sub-Committee by excluding the Worker from the team. The Worker’s name, unlike her team colleagues,  does not figure anywhere in the proposal.

The Employer then goes to say that:

“The IT Services group within the ITD provide second level IT support to University staff, and it is the firm belief of the Director & Deputy Director of ITD that the CO grade is no longer fit for purpose for these position. The market for IT skills is buoyant and while the computer operator grade is still suitable for first level IT support resources, the AP1 grade will be required to fill the positions at the second level tier. Therefore, ITD are proposing to retire the CO grade for the second level IT support resources and to utilize AP1 grade instead.

It is very important that there is a clear distinction in terms of grade between first level and second level IT support resources. The approval of this recruitment pack will provide that for the first time in ITD as current second level IT resources are on the same level (CO) as the first level IT resources.

This recruitment pack Is seeking the approval to replace all three computer operator positions at the AP1 grade.”

The Employer then goes on to explain that Ms A’s position was vacant following her appointment to the role of AP1 (the one and separate AP1 vacancy advertised in February 2018). Essentially, the Employer decided to utilise the panel that was created for the purposes of the earlier competition (for the separate AP1 position) and all COs bar the Worker would move to the positions of AP1. A person next on the panel created following this competition, Mr B, would replace Ms A but at the AP1 level. As Mr B’s position would then be vacant, it would be filled by the person next on the panel, Mr C but again on AP1 level. Mr C would then be replaced by an external candidate at AP1 level.

The Employer then says:

“This will remove the CO grade from use by the second level support team, and see it replaced by the AP1 grade.” 

Again, no consideration was given to the Worker who remained at the CO grade. What does strike me as surprising is that it appears that the Employer’s proposal takes no account of the Worker at all. The Employer seems to ignore the fact that the Worker remained part of ITD team. While the Worker was on unpaid leave at the time, she was due to return to work on 2 July 2018.  At this stage, the restructuring proposal was in train and the process was at an advanced stage (it was formally approved by the Recruitment Sub-Committee on 18 July 2018). There was nothing put forward by the Employer to indicate what was the Employer’s strategy regarding the Worker. The Worker believed that she was treated unfairly and, as a result, she decided to take a career break from which she was then unable to return for over three years now as the Employer insisted that her role did not exist.

There was no dispute that the Employer’s aim was ultimately to replace CO grade with that of AP1. As the evaluation process was abandoned, the Employer embarked on the restructuring process. There was also no dispute that the roles were identical except the remuneration they attracted. It is not surprising that the Worker might have believed that it was in effect repackaging of her role to justify higher salaries. It, therefore, raises a question as to the requirement of the Worker to apply for the role in the first place, given that the job description was identical to the role she already held. If, however, the Employer deemed it to be a promotion, albeit the job description remained the same,  then the approach of the Employer to the Worker’s position is unclear. The Worker was excluded from any considerations and from the recommendations made to the Sub-Committee. She was ultimately left in limbo because of the Employer’s view that, as she was on unpaid leave and subsequently on a career break, she was not treated as an employee. As a result, she was prevented by the Employer from returning to work following an agreed and approved period of career break. 

This is extremely unsatisfactory that some three years after the end of her career break, the Worker is still awaiting her return to be facilitated and it raises serious concerns about the Employer’s approach to the career break policy it has in place.

I recommend that the Employer pays the Worker €15,000 (fifteen thousand euro) in compensation for the treatment she was subjected to.

Career break – failure to facilitate return