Complainant

Respondent

Anonymised Parties

A Computer Operator

A University

Representatives

  Self-represented

Muireann McEnery, IBEC

Act

Complaint

Date of Receipt

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

CA-00043725-001

23/04/2021

The Complainant commenced her employment with the Respondent on 15 June 2013.

At the relevant time, she was employed as a Computer Operator and was paid a yearly salary of €27,745 gross.

The Complainant referred her claim to the Director General of the WRC on 23 April 2021 alleging that that she was discriminated against by reason of her gender, and that the Respondent treated her unlawfully by discriminating against her in the context of promotion.

The Respondent rejects the claim.

The Complainant submits as follows.

In her WRC complaint form, the Complainant submitted that she is a Computer Operator, she is a permanent staff member of the Respondent’s IT Services.

The Complainant 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 Complainant furnished a written statement as follows.

The Complainant worked as a Computer Operator in Service Engineering, IT Services, Information Technology Division (‘ITD’) since 2013 and she was made permanent in 2015. From the multiannual Computer Operator panel, the Complainant was the second appointed and there were two more permanent Computer Operators appointed after her.

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

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

During this time, there was a Desktop Support Analyst AP1 post advertised which all four Computer Operators including the Complainant applied for. The Complainant 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 Desktop Analyst Support AP1. The Complainant further submits that Computer Operator Job Description is the exact same as the Desktop Support Analyst Job Description.

The Complainant submits that she was due to return to work from the career break at the beginning of July 2020. The Complainant notified the Head of Service Delivery on 25 March 2020 (3 months advance notice) of her intention to return to work. The Complainant 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 Complainant submits that the Respondent 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 Complainant 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 Complainant is a permanent staff member waiting to return to work. According to section 5 of the Career Break Policy, the Complainant 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 [Respondent] after a career break will be assigned to vacancies as and when they arise in their grade and department.’

The Complainant submits that the Respondent 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 Complainant 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 Respondent to pay employees their normal salary in respect of the 26 week period of maternity leave.

Summary of direct evidence and cross-examination of the Complainant

The Complainant said in her direct evidence that all her leave was approved by the Respondent.

She said that in April/May 2018 the IT service began regrading of the Computer Operators and she was excluded. She felt left out. She then took a career break. The Complainant 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 and only the salary is different.

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

The Complainant 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 Complainant 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 Complainant).

The Complainant 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.

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

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

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

The Complainant applied for an extension of time limits in regard to her assertion that the Respondent refused to pay her maternity leave pay. She said that she tried to deal with the Respondent and get her job back.

In cross-examination, the Complainant was asked about a comparator. She said that there were three Computer Operators, two males and the third one was a female with grown up children. The Complainant said that she was the only one with the possibility of further maternity leave.

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

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

It was put to the Complainant that there was a requirement to have third level qualifications. The Complainant 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 Complainant.

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

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

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

IBEC, on behalf of the Respondent submits as follows.

The Complainant is alleging that she was excluded from promotion and deliberately discriminated against on the gender ground for every role and opportunity in the IT department. The Respondent refutes these allegations. The Complainant was not treated less favourably on the ground of gender or at all. The role she 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 Complainant

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

The Complainant 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 Respondent 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 Complainant, applied for these posts. The Complainant was not successful in securing one of the AP1 posts through the recruitment competition.

Communication with the Complainant 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 Complainant since May 2020 to date in relation to the Complainant’s request to return to work from career break.

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

At all times the Complainant 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 [Respondent] will not have any obligations to the academic staff or staff member.”

The Complainant 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 Respondent organisation, the Respondent was and remains unable to give a definitive return to work date.

The Complainant 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 Respondent] and in accordance with the recruitment and selection strategies in operation within [the Respondent].” Therefore, should she wishto be considered for future vacancies that arise, she may do so by accessing the link to vacancies site of the Respondent’s website.

Query regarding newly appointed individual in ITD

The Complainant 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 Complainant 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 Respondent’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 Complainant 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 Respondent submits that, since the  commencement of the Complainant’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 Complainant’s post.

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

The Law – discrimination on the ground of gender

The Complainant is alleging that she has been discriminated against on the ground of gender. The Acts define the terms “gender” and what is meant by the term “discrimination”. The Respondent relies on section 6 of the Acts.

Direct discrimination consists of two elements. The first is less favourable treatment of the individual making the complaint, the second is the existence of discriminatory grounds for that treatment. Both elements must be satisfied for a claim of discrimination to succeed. The Complainant has not clearly identified another person who in comparison she can argue she had been treated less favourably than or would be treated. Thus, the Complainant has provided no evidence that she has been treated less favourably than another person is, has been or would be treated. Secondly, the Complainant has also failed to establish a causal link between any alleged discriminatory treatment and her gender.

The Respondent submits that all jobs are awarded following an objective review of the candidates for the role.

The Complainant has not specifically named a comparator. However, reference had been made to a named employee. It should be noted that the role awarded to the employee was in no way comparable to the role the Complainant occupied prior to her career break as can be seen from the comparison table.

The Complainant has been very clear that she wished to return to the same terms and conditions and in fact has subsequently requested to be returned to a role in a higher grade. The named employee was a co-op student and this placement was to provide hands on experience to such students and the practice of the Respondent is to allocate these roles to students on co-op.

Indirect discrimination is deemed to occur where an apparently neutral provision puts persons at a particular disadvantage compared with other employees based on one of the nine grounds covered by the Acts. There is no evidence to show that the Complainant has been indirectly discriminated against.

It has been well established practice of the Equality Tribunal and the Labour Court to require a complainant to present, in the first instance, facts from which it can be inferred that he or she was treated less favourably than another person is, has or would be treated, on the basis of the discriminatory ground cited. It is only when he/she has discharged this burden to the satisfaction of an Equality Officer that the burden shifts to the respondent to rebut the inference of discrimination raised.

In Margetts v Graham Anthony & Company Limited EDA038, the evidential burden which must be discharged by the complainant before a prima facie  case of discrimination can be said to have been established was further outlined by the Labour Court as follows:

“The mere fact that the complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.”

The Respondent submits that in her initial complaint the Complainant has failed to discharge this evidential burden and consequently, the claim must fail.

The Respondent’s position

The onus of proof is on the Complainant to show that she was discriminated against on the grounds of her gender. No evidence has been produced to substantiate these allegations. Until such proof is forthcoming, the Adjudication Officer must reject this claim. As the Complainant has not established a prima facie case of discrimination the Respondent request that eth Adjudication Officer rejects the claim.

Without prejudice to the foregoing argument, if the Adjudication Officer finds that the Complainant has discharged the evidential burden required to raise a presumption of discrimination, the Respondent submits that the Complainant has failed to demonstrate that she has been treated less favourably than another employee is, has been or would be treated in a comparable situation on the ground of gender, and consequently, the claim must fail.

The Respondent submits that it did not treat the Complainant less favourably than any other employee on the ground of her gender.

The Respondent 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 restructure during the Complainant’s absence effectively removing the grade she was on prior to her leave.

The Complainant is unreasonably seeking to return to grade AP2 which is two grades higher than the role she occupied prior to her departure. The Complainant 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 Respondent’s recruitment process is fair and transparent and all roles have to be advertised and candidates brought through a fair recruitment process.

Conclusions

The Respondent submits that the burden of proof lies with the Complainant to demonstrate that she has been discriminated against on the ground of gender as defined under the Acts.

In that regard, the Respondent relies on Cork City Council v Kieran McCarthy EDA0821 where it is stated that the language used within section 85A “indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference or presumption contended for can properly be drawn from those facts.”

Support for the hearing of stand-alone jurisdictional issues at the commencement of a hearing is to be found in the decision of the Supreme Court in Brannigan v The Equality Tribunal and County Louth VEC [2016] IESC40 wherein McKechnie J stated:- “It is both a trite and historical principle of law that a creature of statue must live by the statue. Its jurisdiction is found solely within the provisions of the enabling Act. It has no inherent capacity, unlike, say, that of a constitutional court. It is therefore bound by what has been conferred on it. It has no further competence and cannot create, add to or enlarge the jurisdiction so vested in it.”

The Supreme Court further stated that “does not conduct investigation proprio motu into discrimination which has not been the subject of statutory referral to the Court. Rather, it determines what lawfully had been referred to it with a view to providing redress to the Appellant applicant fir any discrimination as found. The Court cannot as such freelance its inquiry.”

It is in this basis the Respondent submits that as the Complainant has not provided facts from which a prima facie case of discrimination can be established, that there is no case to answer by the Respondent and accordingly the matter should be dismissed.

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

At the adjudication hearing, IBEC submitted on behalf of the Respondent 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 Complainant’s colleague got the job. The Complainant 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 Respondent submitted that the period of career break is unpaid and not reckonable for pension purposes. The Respondent submitted that ultimately the Complainant was on “suspension”. As there was no role for her, she de facto remained on career break.

The Respondent clarified that there are approx. 80 employees in the IT Department, there are some 10-13 students on a part-time basis. The Respondent asserted that a Computer Lab Assistant role has different duties to the Complainant’s role, it matches AP1.

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

Summary of direct evidence and cross-examination of the Employee Relations Manager (ERM)

The ERM said in her direct evidence that there were 59 candidates screened in the 2018 competition, including the Complaint. The Complainant met the criteria. There were 34 applicants that met the criteria of which 8 top candidates were invited to an interview. A panel of three decided who should be interviewed. The Complainant was shortlisted only by one member of the panel. 

Summary of direct evidence and cross-examination of the Deputy Director of the ITD

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 Complainant.

Additional submissions

On 1 March 2023, the Respondent furnished a summary regarding the 2018 Desktop Support Analyst (Analyst Programmer 1) roles. The Respondent 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 Complainant’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 Complainant. 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 Complainant 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 Respondent’s response to the mater regarding the 2018 recruitment competition for the role of Desktop Support Analyst [Analyst Programmer 1 (AP1) grade]. The Respondent submitted that the Respondent’s 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.

Section 6.3 of the (2011) Procedures state:

Members of a Selection Board must be at a level equal to or higher than the level being recruited. The Selection Board for various levels of appointment will be constituted as follows (subject to a minimum of three members and a maximum of seven members):

 · Administrator – Senior Administrator including all other grades which have a salary level less than or equal to the maximum salary point of Senior Administrator:

1. Relevant Manager or his/her nominee;

2. At least two members nominated by the relevant manager.

· Executive Administrator – Senior Executive Administrator including all other grades which have a salary level less than or equal to the maximum salary point of Senior Executive Administrator:

1. Relevant Manager or his/her nominee;

2. Member of Division/Department/Functional Area nominated by the relevant manager;

3. Member external to the Division/Department/Functional Area with appropriate expertise where possible, nominated by the relevant manager;

4. At least one member external to the University with appropriate expertise, nominated by the relevant manager. …

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

The Respondent sought to rely in its submission on details pertaining to pre-adjudication mediation in support of its case. The Respondent was informed by the Adjudication Officer that mediation is a confidential process and information exchanged as part of mediation process would not be considered by the Adjudication Officer.

The Complainant referred her claim to the Director General of the WRC on 23 April 2021 pursuant to the Employment Equality Acts 1998, as amended, alleging that she was discriminated against by the Respondent by reason of her gender. The Complainant alleged that the Respondent treated her unlawfully by discriminating against her in terms of promotion. The Complainant further alleged that the Respondent discriminated against her in terms of her return to work following a career break.

At the adjudication hearing, the Complainant asserted that the alleged discrimination is continuous and ongoing. The Complainant alleged that she was subjected to various acts of discrimination on the grounds of her gender over the period from 2018 to date. In the alternative, the Complainant made an application for extension of the time limit as per section 77(5)(b).

The Respondent rejects the complaints.

Discrimination

Section 6(1) of the Act provides that discrimination shall be taken to occur where ‘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) ...’.

Subsection (2) stipulates:

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

(a)    that one is a woman and the other is a man (in this Act referred to as “the gender ground”),’

(2A) 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 ormaternity leave, a woman employee is treated, contrary to any statutory requirement, less favourably than another employee is, has been or would be treated.’

Section 8 of the Act in relevant parts provides:

‘8. Discrimination by employers etc.

(1) In relation to—

(a) access to employment,

(b) conditions of employment,

(c) training or experience for or in relation to employment,

(d) promotion or re-grading, or

(e) classification of posts,

an employer shall not discriminate against an employee or prospective employee and a provider of agency work shall not discriminate against an agency worker.

(8) Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee in relation to promotion if, on any of the discriminatory grounds—

(a) the employer refuses or deliberately omits to offer or afford the employee access to opportunities for promotion in circumstances in which another eligible and qualified person is offered or afforded such access, or

(b) the employer does not in those circumstances offer or afford the employee access in the same way to those opportunities.’

Burden of proof

Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the Complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to her. If she succeeds in doing so, then, and only then, is it for the Respondent to prove the contrary.

In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the Complainant. It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the Respondent. 

Time limit

Section 77 provides as follows:

‘(5)

(a) Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.

(b) On application by a complainant the Director General or Circuit Court, as the case may be, may, for reasonable cause, direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and where such a direction is given, this Part shall have effect accordingly.

(c) This subsection does not apply in relation to a claim not to be receiving remuneration in accordance with an equal remuneration term.

(6) Where a delay by a complainant in referring a case under this section is due to any misrepresentation by the respondent, subsection (5)(a) shall be construed as if the references to the date of occurrence of the discrimination or victimisation were references to the date on which the misrepresentation came to the complainant's notice.

(6A) For the purposes of this section—

(a) discrimination or victimisation occurs—

(i) if the act constituting it extends over a period, at the end of the period,

(ii) if it arises by virtue of a term in a contract, throughout the duration of the contract, and

(iii) if it arises by virtue of a provision which operated over a period, throughout the period,

(b) a deliberate omission by a person to do something occurs when a person decides not to do it, and

(c) a respondent is presumed, unless the contrary is shown, to decide not to do something when the respondent either—

(i) does an act inconsistent with doing it, or

(ii) the period expires during which the respondent might reasonably have been expected to do it.’

The time limits which govern the referral of complaints under the legislation are provided for in Section 77 of the Acts (as set out above). The effect of these provisions is that the Complainant can only seek redress in respect of occurrences during the six-month period prior to the date on which the claim was received by the WRC unless the discrimination in issue is part of a continuum of events.

In considering this matter, I have taken note of the case of Ann Hurley v County Cork VEC EDA1124 where the Labour Court considered the issue as to whether events which occurred outside the cognisable period for the complaint made could be considered as part of a regime or continuum and thus within the jurisdiction of the Court. It was held by the Labour Court that: 

 ‘Subsection (5) and subsection (6A) of s.77 deal with different forms of continuing discrimination or victimisation. Under subsection (6A), an act will be regarded as extending over a period, and so treated as done at the end of that period, if an employer maintains and keeps in force a discriminatory regime, rule, practice or principle which has had a clear and adverse effect on the complainant (Barclays Bank plc v Kapur[1989] ILRM 387). This subsection would apply where, for example, an employer maintains a discriminatory requirement for access to employment or promotion. In the case of victimisation, it would apply, for example, where an employer pursues a policy or practice of not affording certain benefits to employees who brought equality claims. In such a case the time limit will only run from the time that the policy or practice is discontinued. Hence an aggrieved party could maintain a claim in respect of acts or omissions which occurred in pursuance of the policy or practice regardless of when the act or omission occurred. There is, however, authority for the proposition that an act occurring after the presentation of the Complainant’s complaint may not be taken into account when determining whether there was a continuing act (see the decision of the Court of Appeal for England and Wales in Robertson v Bexley Community Centre [2003] IRLR 434, at para 21).’  

The Labour Court also held in this decision that: ‘Subsection (5) of s.77 deals with a situation in which there are a series of separate acts or omissions which, while not forming part of regime, rule, practice or principle, are sufficiently connected so as to constitute a continuum …… in order for acts or omissions outside the time limit to be taken into account there must have been acts or omissions of victimisation (or discrimination) within the time limit…… their admissibility is dependent upon some link being established between the occurrences outside of the time limit, and those inside the limitation period, which makes it just and reasonable for them to be treated as part of a continuing act upon which the Complainant can rely.’

The approach of the Labour Court as outlined above was approved by McKechnie J in the Supreme Court case of County Louth VEC v Equality Tribunal [2016] IESC 40. Here the Judge stated, at par 23-25 of the Judgment: -

‘23. At the outset it is important to understand that both ss. 77(5)(a) and (6A) are intended to capture quite different circumstances (County Cork VEC v Hurley EDA1124 (Labour Court, 26th July, 2011)). Subsection (6A) deals with situations where a single act occurs and where it continues to occur over a lengthy period, such as discrimination based on a regime, rule, practice or principle of an ongoing nature. A term in a contract is a good specific example of the provision’s more general meaning. In such a case the six month period initiating the process will only start to run when the offending regime or practice ceases; or, put another way, the discriminatory act will be regarded for limitation purposes as having occurred only when such basis has ceased to exist.

24. On the other hand, s. 77(5)(a) of the 1998 Act deals with a situation in which there are a series of separate acts or omissions on the part of, say, an employer, which, whilst not forming part of a regime, rule, practice or principle (“regime or practice”), are sufficiently connected so as to constitute a continuum of discrimination. In effect, this deals with a situation whereby there are separate manifestations of the same disposition to discriminate (Bolger, Bruton and Kimber, Employment Equality Law (Dublin, 2012) at para. 16–47). In such a case, once a complaint is made within six months from the date of the last act or omission, all conduct found to form part of the continuum will be regarded as having occurred within time.

25. At the level of principle, therefore, where such a regime or practice exists or where a sufficient linkage can be established between separate acts, it is possible to plead matters which have occurred on a date or dates far beyond the six month period. In theory, such could extend for several years prior to the date of complaint. Even if that should occur, however, provided that the circumstances intended to be covered by the subsections are established, all such incidents will be regarded as being within time and thus will be within the competence of the Equality Tribunal to investigate for redress purposes.’

It is clear from the foregoing that the Acts allow for circumstances in which acts of discrimination that occurred outside the normal time limit can nonetheless be relied upon provided the claim is submitted within the six months of the point in which the discrimination ended. In the circumstances, it is necessary for me consider if the incidents of alleged discrimination relied upon by the Complainant can be regarded as part of a continuing act of discrimination for the purpose of Section 77(5) or Section 77(6A) of the Acts.

Admissibility is also dependent upon some link being established between the occurrences outside the time limit, and those inside the cognisable period, which makes it just and reasonable for them to be treated as part of a continuing act upon which the Complainant can rely.

Therefore, in accordance with the consistent approach applied by the Labour Court in circumstances such as those that prevail in the within case, I must first consider whether an act or acts of discrimination occurred within the cognisable period for the within complaint before I can consider whether events outside of that period can be considered to be part of a continuum or regime of discrimination and within my jurisdiction.

The Complainant referred the within complaint to the Director General of the WRC on 23 April 2021. Therefore, the cognisable period  for the purpose of the complaint in accordance with the time limits provided for in Section 77(5) of the Acts is the six-month period prior to the referral of the complaint, namely is from 24 October 2020 to 23 April 2021.

There was no dispute that the Complainant was due to return from her career break on the 1 July 2020. The Complainant contends that the ongoing failure of the Respondent to return her to work up to the date of the hearing was directly related to her gender. The Complainant asserted that she was the only employee that could avail of a maternity leave in the future.

The evidence before me is that, at the relevant time, the Complainant was pregnant. It is not clear when exactly did the Respondent became aware of the Complainant’s pregnancy. What is clear is that on 15 July 2020, the Complainant emailed the Respondent stating that she was due to commence her maternity leave in September. I am, therefore, satisfied that as of 15 July 2020, the Respondent was on notice of the Complainant’s pregnancy. The Complainant’s baby was born on 27 September 2020.

The entire period of pregnancy and maternity leave constitutes a special protected period as outlined in the European Court of Justice decisions in Webb v EMO Air Cargo (UK) Ltd [1994] ECR 1-3567, Brown v Rentokil Ltd [1998] ECR 1-04185 and Dekker v Dekker v. Stichting Vormingscentru voor Jonge Volwassen [1990] ECR 1-3941. It is well established that discrimination based on pregnancy comes within the remit of gender-based discrimination. This is expressly provided for in section 6(2A) of the Employment Equality Act, as quoted above.

Council Directive 2006/54 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation, the “Recast Directive” expressly provides that less favourable treatment on the grounds of pregnancy is a form of discrimination prohibited by the Directive:

“Discrimination shall include … any less favourable treatment of a woman related to pregnancy or maternity leave within the meaning of Directive 92/85/EEC”

Council Directive 92/85 Pregnancy Directive, the “Pregnancy Directive” is further aimed at improving the health and safety of pregnant employees and provides specific rights to pregnant workers thereby moving away from the need for a comparator at all. The Directive provides for two types of substantive protection for employees: first, health and safety protection and, secondly, protection from less favourable treatment on grounds of pregnancy.

Section 2A of the Employment Equality Acts expressly prohibits direct discrimination on the grounds of pregnancy.

The leading Irish case for dismissal on the grounds of pregnancy is O'Brien v Persian Properties trading as O'Callaghan Hotels, DEC-E2012-010, where the Equality Officer relied on the decisions of the Court of Justice in Dekker, Webb and Brown in confirming that pregnancy is “a special protected period”.

In Trailer Care Holdings Ltd v Deborah Healy EDA128 the Labour Court summarised the legislative provisions and authorities regarding protection of women during pregnancy as follows:

“It abundantly clear from these authorities, and from the legislative provision of the European Union, that women are to be afforded special protection from adverse treatment, and in particular from dismissal on account of their condition, from the commencement of their pregnancy until the end of their maternity leave. The entitlement to that protection is to be regarded as a fundamental and inviolable right within the legal order of the Union which the Courts and Tribunals of the Union must vindicated within the limits of their jurisdiction.  It seems equally clear that where a pregnant woman is dismissed during this period of special protection the employer bears the burden of proving, on cogent and credible evidence, that the dismissal was in no sense whatsoever related to her pregnancy. ”

In Croc’s Hair and Beauty v Helen Ahern ADE/16/58, the Labour Court set out its understanding of the legal protections for pregnant women. It referred to the fact that the then ECJ recognised in the case of Dekker v. Stichting Vormingscentru voor Jonge Volwassen (VJV-Centrum) C177/88 (1990) EUECJ R177/88,that, as pregnancy is a uniquely female condition, any less favourable treatment on grounds of pregnancy constitutes direct discrimination on grounds of gender.

In Astra Leisure and Ultra Fresh Services Limited v Svetlana Grodzicka EDA2322, the Labour Court noted that “this principle has been copper fastened by the recognition of equality on gender grounds in the Charter of Fundamental Rights of the European Union which was, in turn, incorporated into the Lisbon Treaty. The jurisprudential principle is set out in Directive 2006/54, which provides that any less favourable treatment of a woman related to pregnancy or to maternity leave constitutes unlawful discrimination.”

The Court went on to state that:

“The Court in  Croc’s Hair and Beauty v. Helen Ahern observed that the special protection afforded to women from the commencement of their pregnancy until the end of their maternity leave is to be regarded as a fundamental right and that where a pregnant woman is treated adversely because of her condition during this period, the employer bears the burden of proving, on cogent and credible evidence, that such treatment was in no sense related to her pregnancy.”

The first issue, therefore, for the Adjudication Officer to consider is if, in fact, there was adverse treatment of the Complainant in contravention of the provisions of the Acts.

The Complainant referred to events as far back as 2018. For the purposes of this complaint and in line with the prescribed time limits, I will first consider whether any acts of discrimination have occurred within the cognisable period set down by the Acts for the making of a complaint i.e., 24 October 2020 to 23 April 2021.

There was no dispute that the Complainant applied for consecutive career breaks from 3 July 2018 to 30 June 2019 and from 1 July 2019 to 31 June 2020 which were approved by the Respondent.  There was also no dispute that, as per the Respondent’s policy, the Complainant informed the Respondent some three months in advance of her intention to return from the career break on 1 July 2020. I acknowledge that  the said policy provides that “delay in returning to duty can be expected, as appropriate vacancies may not exist at the completion of the career break period”. However, it is clear that the Complainant remained in the Respondent’s employment in the position of Computer Operative and was due to return to work on 1 July 2020.

The evidence before me shows that the Complainant informed the Respondent on 15 July 2020 that she intended to commence her maternity leave in September 2020 (the Complainant’s baby was born on 27 September 2020). Once the Complainant has disclosed the fact of pregnancy, she entered a protected period. The Respondent did not engage with the Complainant and informed her by email dated 21 July 2020 that it is “not in position to process Maternity Leave” for the Complainant. In light of the Respondent’s refusal to pay the Complainant her maternity leave pay, the Complainant informed the Respondent that she needed her job back as soon as possible.  It was therefore known that she was intending to return to work as soon as possible. The Complainant raised a formal grievance in this regard on 9 September 2020 when she emphasised that “I really need my job back as soon as possible.” I find that in the cognisable period, the Respondent did not engage with the Complainant in any shape or form. The Respondent failed to engage with the Complainant in the context of her maternity leave request and there has been no attempt made by the Respondent to engage with the Complainant and facilitate her return to work.

I, therefore, find that the Complainant in has established primary facts which I regard as being of sufficient significance to raise a presumption of discrimination, i.e. having been on notice of the Complainant’s pregnancy and the imminent maternity leave, the Respondent failed accommodate her return to work following an approved career break.

Having found that the Complainant has raised the inference of discrimination on the gender ground, it falls on the Respondent to rebut the inference of discrimination. It follows that the burden has been shifted to the Respondent to prove that it did not discriminate against the Complainant as alleged. In this regard, the Respondent asserted at the adjudication hearing that the Respondent’s ITD department went through a significant restructuring during the Complainant’s absence as a result of which the Complainant’s grade ceased to exist and there was no other suitable role for the Complainant.

I find the Respondent’s argument implausible. The Respondent confirmed at the adjudication hearing that it employs some 80 staff in the ITD. On the ITD Deputy Director’s evidence, there was “some movement”, people “were gone and recruited”. For the avoidance of doubt, the Deputy Director confirmed at the hearing that the two positions, AP1 and Computer Operator were exactly the same in the context of duties, responsibilities and job description bar salary. However, the Respondent argued that none of the jobs was suitable for the Complainant. The Respondent put forward no other reason for that treatment other that the alleged lack of suitable role for the Complainant.

What is striking is the absence of any records setting out the Respondent’s rationale as to why the Complainant could not return to work. There is no document setting out how the Complainant’s situation was assessed. In the absence of any such documentary evidence and the Respondent’s submission and evidence simply stating that there were no suitable roles, I am unable to fathom how the Complainant’s situation was assessed.

While I appreciate that some delay might have occurred, I find it implausible that a leading university with a sizeable IT department was not in a position for such an extended period of time to bring back an employee from a career break.  A career break is understood as an agreed period of absence or a special leave without pay but clearly, it does not end an employment relationship. I find the Respondent’s position that, simply because she availed of an approved career break, the Complainant was “ultimately on suspension” and, as she was on a career break she was not treated as an employee, astonishing.

The Respondent’s failure to engage and return the Complainant to her job in the cognisable period and the failure of the Respondent to put any persuasive arguments in order to discharge the burden leads me to conclude that the Respondent discriminated against the Complainant on the ground of gender, in accordance with section 2A of the Acts. There were no cogent and credible arguments put before me to indicate that the Respondent’s failure to accommodate the Complainant’s return to work was in no sense whatsoever related to the Complainant’s  pregnancy and its consequences.

I note the Complainant’s assertion that the Respondent’s failure to allow her to return to work following her career break was continuous discrimination. In that regard, I find that as of 15 July 2020, the Respondent was on notice of the Complainant’s pregnancy and imminent maternity leave. The Respondent was on notice of the Complainant’s intention to return to work at this stage.

The Complainant emailed the HR Business Partner on 31 August 2020 querying why she was not offered a position of Computer Operator in the Department which was given to a new person on 24 July 2020. She received no reply to her email.

On 1 September 2020 the Complainant emailed the Chief Operating Officer of the Respondent outlining her difficulties with returning to work and with the fact that a new person started in the ITD on 24 July 2020. A HR Business Partner replied on 4 September 2020 repeating that the Respondent’s needs “evolved” since the commencement of the Complainant’s absence and relying on the clause 5.2 of the Career Break Policy. The HR Business Partner stated that the Respondent is “not in a position to give a definitive return to work date” and encouraged the Complainant to “seek out suitable opportunities which may arise” on the Respondent’s website.

The Complainant replied on 4 September noting that the same section of the Policy under clause 5.1. states that “Academic staff and staff returning to [the Respondent] after a career break will be assigned to vacancies as and when they arise on their grade and department.” The Complainant again queries why she was not offered the position. The HR business Partner replied on 10 September 2020 and declined “to comment on any specific individual…” “…in accordance with GDPR legislation”. She continued on outlining that there was existing practice within ITD to take on undergraduate and postgraduate students on a named placement scheme on a 51 week basis. The Complainant replied that she is a permanent staff member and, as per policy, she should get the first offer on vacancies as they arise. The Complainant did not receive any reply to this email.

On 9 September 2020, the Complainant formally raised a grievance by email wherein she described her difficulties returning to work and informing the Respondent that she really needed her job as soon as possible. The Complainant did not receive reply from the Respondent.

I find that the events which predate 24 October 2020 are sufficiently connected to acts of discrimination occurring within the time period specified by the Acts as to be within my jurisdiction.

I find that failure of the Respondent to accommodate the Complainant in respect of the return to work and that the events occurring from 15 July 2020 onwards constitute a continuum of discrimination. I find that there was a repeated failure on the part of the Respondent to accommodate the Complainant’s return to work and the Respondent’s treatment of the Complainant in this regard represents ongoing discrimination.

As per my finding above regarding the instance of discrimination within the cognisable period, I find the Respondent’s position that it could not accommodate the Complainant’s return to workfar from adequate. The Complainant remained an employee of the Respondent, she was anxious to return to work post her career break and, in particular, in light of the Respondent’s refusal to pay her maternity pay. The Respondent’s rationale that because the business needs and responsibilities of the Department have evolved since the commencement of the Complainant’s leave and that, as per policy, “delay returning to duty can be expected” to justify the failure to accommodate Complainant’s return to work is implausible.

Regarding the Complainant’s assertion that the Respondent discriminated against her on the grounds of gender in the context of promotion following the competition in 2018, I find that there was no evidence put before me to support the Complainant’s claim that the reason she was unsuccessful in the competition was due to her gender. The Complainant, as her three colleagues (2 male and 1 female) applied. I cannot accept the Complainant’s assertion that the reason she was not successful was due to the fact that she was the only person that could potentially avail of maternity leave in the future.

Regarding the Complainant’s assertion that she was discriminated against on the grounds of gender in the context of the competitions held in 2021 and 2022, I find that I have no jurisdiction to consider events that postdate the Complainant’s referral of her claim to the WRC.

Having considered the matter, I find that the Respondent discriminated against the Complainant on the ground of her gender in the context of her return to work.

In assessing the level of compensation to be awarded, I had regard to the observations in the case of Case 406/06 Paquay v Societe d’architectes Hoet +Minne SPRL (2007) ECR 1-8511 that the requirements of redress should ‘guarantee real and effective judicial protection and have a real deterrent effect on the employer.’

As of the date of the referral of her complaint to Complainant’s return to work was delayed by some 9 months. I note that, as of the date of the adjudication hearing the Respondent still had not arranged the Complainant’s return to work. I also note that, as a result of the Respondent’s failure to accommodate the Complainant’s return to work, she was deemed not eligible for the Respondent’s maternity leave pay. I am also cognisant of the distress the Complainant experienced as a result of the Respondent’s disregard to its own policies and to the protections from discrimination on grounds of pregnancy or its consequences afforded to women.

I declare this complaint to be well founded. I direct the Respondent to arrange, within four  weeks from the date of this decision, the Complainant’s return to work to a suitable position attracting terms and conditions of employment not less favourable to the Complainant than those she had immediately before the start of the absence.

Furthermore, I direct the Respondent pay the Complainant compensation in the amount of €40,000.

Pregnancy – gender - discrimination