Complainant

Respondent

Parties

Mandy  Hurley

Eazy Connections Ltd. T/A Complete Outsource Solutions

Representatives

Mr. David Pearson, Solicitor of JW O'Donovan LLP

Mr. Denis Collins BL instructed by  McCoy Solicitors

Act

Complaint 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-00044720-001

22/06/2021

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

CA-00044720-002

22/06/2021

The Complainant commenced work on 3rd August 2015 with Smart Traveller Concierge, a company owned by Mr. Jim McCoy. Her employment was transferred to Eazy Connections Limited trading as Complete Outsource Solutions and she remains an employee of the Respondent Company.

The Complainant submits that on her return from maternity leave, she was not restored to her previous role, that she was given lesser duties and a lower level of responsibility, that she was excluded from meetings she would previously have attended; and she further submits that she was not provided with suitable alternative work. She submits that she raised this with the Respondent company, that her grievance was not processed, and the matter was not addressed adequately or at all.

She further submits that she applied to work from home and that this was declined, with her gender and family status being cited as reasons it was declined, that she was informed that women with children who worked from home were less productive or efficient and that she was required to work full time from the office premises.

The Complainant has been on certified sick leave since 17th May 2021 and remains on certified sick leave. 

The Respondent denies the Complainant’s claims.

It raised a legal point in relation to the claim under the Maternity Protection Act 1994 and submits that the claim under that legislation is out of time.

It submits that the Respondent business expanded significantly in the period while the Complainant was on maternity leave, and that she was provided with suitable alternative work on her return. It further submits that her pay and conditions remained the same.

It submits that the denial of her application to work from home was unrelated to gender or family status, that no comparator has been identified in relation to family status, and that another member of the management team who is female was also required to work from the office.

The Complainant submits that she is the Office Manager of the Respondent company, and that she returned to work after a period of maternity leave on 7th December 2020. At that time, the company was heavily involved in a marketing campaign for a major client, and she was asked to work on that campaign and was happy to do so as part of a team effort.

From about January 2021 onwards, the Complainant submits, however, that she began to notice that she had not been restored to her role of Office Manager, that many of her functions had been removed from her since her return to work after maternity leave, and that she has been required to do significantly lesser work with much less responsibility. She submits that it became clear to her over time that her role of Office Manager had been removed from her and that no suitable alternative role was forthcoming.

She submits that she was excluded from management meetings that she had previously attended, with no prior discussion with her about either the role of Office Manager having been removed and also no discussion about a suitable alternative role. She submits that she had to take all steps to ascertain the position as nothing was forthcoming or volunteered by the Respondent company and that she formally raised the issue of her role having been diminished on 16th February 2021.

She submits that she was advised on 3rd March 2021 that her role no longer existed and that there was no alternative role for her at that time.

She submits that it was not until 12th April 2021 that an alternative role was first suggested to her, and that this alternative role was not equivalent to her role as Office Manager and was therefore not a suitable alternative role.

She submits that she raised concerns about the alternative role on 15th April 2021 and did not receive any response until early May 2021.

She submits that, in the interim and due to the pressure she was feeling, she took three weeks parental leave from 19th  April 2021 to 11th May 2021.

She submits that she received a response to her questions on the alternative role on 7th May 2021 and that she communicated her unhappiness on 14th May 2021.

She submits that she has been on certified sick leave since 17th May 2021.

Request to Work from Home

She further submits that she ought to work part of the time from home as a means of reducing some of the stress she was feeling and that this request was denied on the basis that women with children who worked from home were less productive or efficient and that she was required to work full time from the office premises. She submits that she was discriminated against by reason of her gender and family status with no objective justification and no discussion about her circumstances. She submits that she was not allowed to return to her job as Office Manager with the functions she previously had prior to her maternity leave.She submits that she believes she was being victimised and penalised because she was challenging her employer to return her to her role of Office Manager. She submits that she believes that her employer was seeking to create a situation where she would resign from her employment.

The Complainant submits that, prior to going on maternity leave, her role was that ofOffice Manager of Complete Outsource Solutions reporting principally to Mr. Jim McCoy as proprietor. As Office Manager, her role comprised of a large list of duties including but not limited to payroll, roster management, human resources administration and human resources (such as disciplinaries), oversight and reporting duties, and scheduling and attending operational meetings as well as completing other instructions regularly given to her by Mr. Jim McCoy. 

In April 2020, the Complainant went on maternity leave, returning to work on 7th December 2020. 

The December/Pre-Christmas is traditionally an extremely busy time for Complete Outsource Solutions.  On her return to work from maternity leave the Company was heavily involved in a marketing campaign for a major client. Ms. Hurley was asked to work on that campaign and readily agreed as part of a team effort. 

On return to work in January 2021, the Complainant began to notice that she had not been restored to her role as office manager and that many of the functions had been removed from her and that she was no longer being invited to management meetings which she had previously attended. She sought to engage with Mr. Jim McCoy, proprietor of the Respondent Company, with a view to having her restored to her role as office manager.  Mr. McCoy denied that Ms. Hurley had the role of Office Manager and he stated in an email dated 5th March 2021:

“In your emails you refer to your job title as office manager but this is not a job title that was given to you by me so I would like you to confirm where you got this job title from”  (Copy of email submitted.) 

The Respondent’s “Statement of Opposition” submitted to the WRC on the 29th of August 2022 re-iterates that the Complainant is not the Office Manager of the Respondent Company. 

However, the Complainant’s role as “Office Manager” was acknowledged by Mr. Jim McCoy in the completed transfer of employment (TUPE) from Smart Traveller to Complete Outsource Solutions (copy of document submitted).  It is further submitted that Mr McCoy was also involved with Smart Traveller.

The Complainant sought to be restored to her role as Office Manager from early February 2021 to 17th May 2021 when she went on sick leave. Her repeated attempts to be restored to her role were unsuccessful and she took parental leave due to mental exhaustion, stress and anxiety. She had hoped the break from work would allow the Respondent put in place her role while she was absent. Nothing changed on her return.  

It is submitted that at no point during any discussions between the Complainant and the Respondent was a suitable alternative employment offered by the Respondent. 

Ms. Hurley has been absent from work since the 17th of May 2021 and continues on medical certification due to work related stress caused solely by reason of the fact that the Respondent has not:

·       returned Ms Hurley to the role of Office Manager;

·       offered a suitable alternative role;

It is submitted that the Respondent has also discriminated against the Complainant by reason of her gender and family status.

SUITABLE ALTERNATIVE EMPLOYMENT

It is submitted that the Respondent Company has made clear at all times that it never regarded the Complainant as the Office Manager and still does not recognise her role as Office Manager.  The Respondent denied and/or challenged that the Complainant was Office Manager in discussions with the Complainant when she sought to be returned to her pre-maternity role. Furthermore, the Respondent continues to deny the Complainant is the Office Manager in the formal submission lodged with the WRC less than two weeks prior to the hearing.  This repeated and continuing denial of the Complainant’s role is in stark contrast to the written acknowledgement of the Company in 2018 that Ms. Hurley’s employment as Office Manager was transferred to Complete Outsource Solutions.

In circumstances where Complete Outsource Solutions refused and continues to refuse to acknowledge the role of Ms. Hurley it is submitted that it could not be in a position to provide “suitable alternative employment” under a new contract of employment. 

The Complainant submits that “suitable alternative work” is:

·       work of a kind which is “suitable in relation to the employee concerned” and appropriate for the employee to do in the circumstances; and 

·       the terms and conditions of the contract relating to the place where the work is to be done, the capacity in which the employee is to be employed and any other terms and conditions of employment are not less favourable to the employee than those of her contract of employment immediately before the start of the leave, and incorporate any improvement in the terms and conditions to which the employee would have been entitled if she had not been so absent from work during that period.  

The Complainant relies on Section 27(2) and Section 27(2)(b)(ii) of the Maternity Protection Acts.  

Furthermore, the Complainant submits that the expression “suitable in relation to the employee concerned” in the Maternity Protection legislation is required to be interpreted subjectively from the employee’s standpoint, including the general nature of the work which suited her and her domestic considerations. The Respondent did not provide the Complainant with any written contract setting out any proposed revised role that might constitute suitable alternative employment. Rather the Respondent placed the onus on the Complainant to create an alternative role for herself.

DISCRIMINATION UNDER EMPLOYMENT EQUALITY ACTS

The Employment Equality Acts prohibit less favourable treatment, on the basis of pregnancy, during maternity leave and on a woman’s return to work from maternity leave, on the gender ground and/or the family status ground.

In this instance, it is submitted that the Respondent gave the Complainant tasks below her grade upon her return to work from maternity leave in December 2020. While the Complainant was content to provide all the assistance she could as part of a team effort in the run up to Christmas 2020 she did not expect her role as Office Manager to have been permanently removed from her. In fact, the Respondent denied and continues to deny the Complainant her grade as Office Manager and from January 2021 assigned Ms Hurley tasks that were several grades below her work prior to going on maternity leave. It is submitted that the Respondent sought to treat Ms Hurley as a call centre staff member and not a member of the management team, and it is submitted that there has been discrimination on the grounds of family status and gender arising from her having been on maternity leave. 

The Complainant submits there is an obligation on an employer to treat applications for family friendly hours reasonably. It is submitted that an employer’s refusal to grant an employee hours working from home should be based on objective reasons relating to the proper operation of its service, and not on the employee’s gender or family status. In this instance, it is submitted that on her return to work after maternity leave the Complainant was denied the right to work from home for some of the time. The Complainant was advised that she “was required to continue to work on site” by email from Mr. Jim McCoy to Ms. Mandy Hurley, dated 5th March 2021. (Copy of email submitted). 

It is submitted that there has been no objective assessment by the Respondent of the request by the Complainant to work from home during the Covid pandemic rather than on site and no objective reasons for refusal was given. It is the Complainant’s case that there has been discrimination on the family status and gender grounds.

The Complainant, Ms. Mandy Hurley, gave evidence on her own behalf, at the hearing:

Ms. Hurley outlined that she worked for Mr. Jim McCoy from June 2010 for a company called “InterCall Management” for five (5) years. Then, the company went into liquidation in 2015. Mr. McCoy and another man [involved in the company] split and went their separate ways and she stayed with Mr. McCoy.

She explained that she worked for “Outsource Solutions” and for “Smart Traveller Concierge” and was under the payroll of “Smart Traveller Concierge” – she said that the company was owned by Mr.  McCoy and a partner too. She had worked there since 3/8/2015. She said that she worked three (3) days per week with Smart Traveller and two (2) days per week with Outsource Solutions. She said that she had many roles and responsibilities with both, that she met with Mr. McCoy every morning and her duties were given on a daily basis. A document was entered into evidence with a long list of duties, which were then read into the record. It included doing the payroll for another business (a chocolate shop), travelling to Louth and Dublin, dealing with client campaigns (there were a set of criteria which had to be followed), and ad hoc duties as well for Mr. McCoy and his business partners; that she carried out the duties listed in respect of both Smart Traveller and Complete Outsource Solutions (not everything but most things).

She said that in January 2017, on a grant application to Udaras Na Gaeltachta, she was listed as the Office Manager, a document which was signed by Mr. McCoy (A copy of the document was submitted).

She said that in 2018, she went to Outsource Solutions from Smart Traveller on 31/10/2018. There was a TUPE document in relation to that (a copy of which was submitted) and she was listed as the ‘Office Manager’ on that document. That document was signed by Mr. Richard Ennos, on behalf of her then-current employer and Mr. Jim McCoy, on behalf of her new employer.

She was asked whether before she went on maternity leave, if she was ever told she was not the Office Manager?

She said: “No.”

Q: “And since?”

A: “Yes.”

She said that she went on maternity leave in April 2020 and that prior to going out on maternity leave, she reported to Mr. Jim McCoy and her list of duties included payroll, accounts, staff; meeting with clients; enforcing office policies; ensuring that the client complaints were running smoothly, employee management; disciplinaries; She said that in relation to the call centre – Complete Outsource Solutions – her duties involved answering calls, dealing with customer queries, answering emails as well, all external customers; She said that there were approximately 20-30 staff members and they would have seen her as the Office Manager – that payroll queries were directed towards her, that she dealt with new hires and the onboarding of new starters and with organising staff incentives; She said that in 2018, there was no difference in duties before and after the TUPE transfer occurred.

Pregnancy and Maternity Leave

She said that she got pregnant, and her role continued unchanged up until the time she went on maternity leave, that she attended the same meetings, had the same duties and reported to Mr. McCoy. She said that she was on maternity leave from 06/04/2020 until 07/12/2020.

On 04/12/2020, she received an email informing her that the company had moved buildings. She said that on 07/12/2020, she went to the office where she was advised to go and that she recognised no-one, the company had grown substantially in her absence, there was no-one to meet her, she had no desk, and she waited two (2) hours in the canteen. Mr. Murphy got there first, and Mr. McCoy came along two (2) hours later. Mr. Murphy told her she would be needed on the campaign for a large client. She said that she did that before maternity leave too, that she had no problems with that. She said that they gave her a desk in the middle of the room in the middle of other general operatives (which was unsuitable). Previously, she would have a space suitable for her to do her role. She said that she was waiting two (2) weeks for log ins and that she had to ask for work to do every day. She said that she was given a task of scanning envelopes for the campaign and asked to attend new hire training as a refresher for emails. She said that she was back for two (2) weeks pre-Christmas, then on Christmas break.

She said that there was a meeting on January 5th, 2021, with the Complainant, two (2) new team leaders/managers who she had not met them before, and also Mr. Murphy and Ms. E. She said Mr. McCoy was not at the meeting. At that meeting, she was asked to focus on organising interviews for campaigns that were coming on board and to organise interviews for the campaign for the major client they were working on as the company was short-staffed. It was discussed that the company had grown. An organisational chart the Respondent submitted was put to the witness. She said that she never saw it before, and no-one discussed it with her. She agreed that prior to January 5th, 2021, no-one ever discussed her roles and responsibilities with her.

Request to Work from Home

She said that in January 2021, Covid cases were at about 6,500 cases daily, that she lived at the time with a high-risk person and had a new baby, and she asked to work from home. She said she texted Mr. Murphy as a colleague to see what he thought but got an official response from him which was very out of character. She said that she then phoned Mr McCoy on that day herself, who she described as being short with her, he told her that they would have a meeting over the coming days but he could not foresee a problem, but she would have to wait for the meeting (on January 5th). So, she then applied to work from home. She said that her application was denied, and a series of confusing reasons were given which did not make any sense. She said she was told that managers cannot work from home, but managers had worked from home previously. She said that she queried this, and she was told that employees who work from home who had children were not as productive. She said that she was desperate to work from home, that the Covid regulations were not being followed in the office and she felt very unsafe.

She said that the next thing that happened was that management meetings were taking place, but she was only told of two of them: 1. She was invited to a management meeting on January 3rd, 2021. 2. She was asked to provide information in relation to a disciplinary issue regarding another employee for a meeting on February 5th but told that she was not needed for that meeting.

She said that there was a manager meeting on January 5th, 2021, and she was not invited (not on the calendar invite). She said that she was alone in being excluded from that meeting.

She said that on February 15th, 2021, she was asked for an activity report i.e. a report of what she was doing every day. She said that Mr. Murphy requested it, stating that Mr. McCoy had asked everyone for it. She said that she had never been asked for that before; and that a couple of days later, she approached two (2) other managers two (2) days later to ask whether they had received the same request and they said that they had not.

She said that the biggest indicator that something was amiss was that her roles and responsibilities had not been returned to her. In terms of the duties she retained, she said that occasionally she was involved in a disciplinary - gathering evidence by listening to calls to back up her case with a particular agent, and that she often organised interviews as well.

By 16th February 2023, the Complainant said that things came to a head. She said that, at that stage, “I really felt like my job was on the line.” On 16/02/2021, she emailed Mr. Jim McCoy and received a response eight (8) days later on 24/02/2021. On 25/02/2021, she replied to him requesting to record the meeting and she received a response declining the request on 01/03/2021. There were further emails between them on 03/03/2021. (Copy of the email thread submitted). The meeting took place on 03/03/2021  and the Complainant brought in a notebook and pen. She said that Mr McCoy did not want her to take notes, but she did anyway. She said that he outlined that the company had grown substantially and that she was not in attendance while she went on maternity leave. She said that he could not confirm whether she was a manager without reviewing a role for her and that he said he was quite happy with the structure he had in place. She said that he did not explain the structure. She said that she was told that her previous role did not exist and that she was to come up with a role for herself and come back to him – the role would need to make money to cover her wages. She said that as a result of that meeting: “My understanding was I did not have a role.”

The Complainant emailed Mr. McCoy on 04/03/2021 in relation to the meeting of the previous day setting out that she was distressed by the meeting and setting out, inter alia: “When on maternity leave, I am to be treated as being in employment. This means that I have the right to return to work to the same role with the same contract of employment. If this is too difficult to arrange, you as my employer must provide suitable alternative work on terms that are not “less favourable” than in my previous job.” He replied by email on 05/03/2021 disputing much of the contents of her email of 04/03/2021.

The Complainant also outlined that she had received no contract from Complete Outsource Solutions  and she could not recall getting a contract from Smart Traveller. The Complainant said that she took three weeks parental leave and that when she came back in April 2021, nothing had changed. She said that there was no resolution as to her role or responsibilities. She said that when she came back, she was interviewing, doing emails, reviewing CVs. She said that there was no return-to-work meeting after parental leave and no additional responsibilities. She said that she could not take anymore, that she was extremely uncomfortable, and she went on sick leave.

She said that she was offered a job at a return-to-work meeting with Mr. Murphy after a day of absence (in April), that at the end of meeting it was suggested that there was a suitable alternative job - a call listening role. She said that Mr. Murphy said Mr. McCoy had asked him to talk to the Complainant about it. She said that she “stopped him [Mr. Murphy] in his tracks” and asked for an email from him or Mr. McCoy. She said that she wanted an opportunity to be third-party represented. Mr. Murphy emailed the Complainant on 12/04/2021 and the Complainant replied on 15/04/2021. (The email thread was entered into evidence.)

The possibility of a full-time Quality Control Manager role was raised with the Complainant. She said: “I wasn’t given a role in January.” She said that in the company submissions was the first time it was raised that there might be an alternative role.

She said that prior to going on maternity leave, that was not her job, and her reporting line was to Mr. McCoy not to Mr. Murphy.

It is the Complainant’s case that her performance was challenged for the first time, and she was told “we’re getting very little value from you” at the point when Mr. Murphy asked her for a list of her responsibilities. Her productivity was compared unfavourably against call answering staff whose role consisted largely of doing emails whereas that was not the Complainant’s role - she was a manager. She said that she had never been reprimanded previously. It is her case that her responsibilities and her role had been considerably reduced. The last email sent was on 14/05/2021.

The Complainant went on certified sick leave on 17/05/2021 and remains on sick leave, at the date of the hearing.

On Cross-examination:

It was put to the Complainant that the company had been a small operation with very few employees. It was put to her that the Respondent’s evidence will be seven (7) full-time and four (4) part-time, and that the company now has twenty to thirty (20-30) employees. The Complainant disagreed with the initial figures.

She was asked about a list of tasks. It was put to her that they involved HR duties (employment management) which she accepted - organising disciplinaries, collaborating with the team leaders who were directly over the staff, onboarding. The Complainant said that it was her and the team leader involved in onboarding. She was asked about starter forms and contracts etc. and her level of familiarity with those. She said she was more familiar with starter forms than contracts – contracts have to be approved by Mr. McCoy. She was asked about her own contract. She said that she never had a contract that she recalled. It was put to her that this was surprising, in light of her responsibilities. She said that: “No – other employees also didn’t have a contract.” It was put to her that the Respondent would say that she had a contract, that she would have created her own contract. The Complainant disagreed and suggested that she thought the TUPE form would have been her contract. An email the Complainant sent dated 17/02/2022 was put to her which suggested that “I know I have a copy of it at home…” and, further, that the contract was “buried somewhere at home” – she said that she probably assumed she had got a contract, and suggested she may have confused the contract with the TUPE document. (Copy of emails submitted)

It was put to her that her role involved dealing with disciplinary issues and she would therefore be familiar with the employee handbook, which she accepted. The job description section was put to her which included a section on job flexibility and transfer, based on business needs. She had initially rolled out the handbook, and then there were changes to the handbook (Jan/Feb 2021).

It was put to her that when she left to go on maternity leave, it was a small company and when she got back from maternity leave, the company had increased significantly in size, which she accepted.

She re-iterated that she was happy to help out with the marketing campaign for the big client on her return, as required.

Her application to work from home was explored. It was put to her that the company office was the place of work but, staff worked from home due to Covid and that working from home was not really a thing prior to Covid.

She was asked whether she wanted to work from home long-term and she said “No.” It was put to her that the request was declined. She said: “Not when I first asked.” She said that she had the text back from Mr. Murphy which was official, and which she perceived to be out of character for the relationship she thought they had; that she then phoned Mr. McCoy and he said it should not be a problem but to wait for the meeting (05/01/21). It was put to her that “they considered your request to work from home?” She said: “I wasn’t aware of any consideration.”

There was a dispute about the dates – it was put to the witness that Mr. Murphy’s evidence would be that 05/01/21 was the day she was informed that working from home (WFH) was not something possible. The witness flatly denied this and said that it did not happen. She said there was a subsequent meeting attended by five people including the Complainant. It was put to her that Mr. Murphy will say that he met you in advance of that meeting and explained to you why working from home was not possible.

The hearing was adjourned on application, after legal argument, in relation to the production of certain documents the existence of which came to light during the cross-examination.

[Adjudication Officer’s note: The documents were produced for the second day of hearing, on foot of an application by the Respondent, which was granted. The documents largely related to duties the Complainant said she carried out – she was proffering them as evidence of what she had done in her role previously. There was argument between the parties in relation to this. The upshot of the dispute was that it was agreed to be largely common case between the parties that a list of duties which the Complainant submitted had been carried out by her, but the Respondent’s position was that those duties were not exclusively carried out by her, that they had been carried out by some other employees as well. This point of agreement short-circuited the necessity for a large volume of documents to be entered into evidence and examined individually.]

On the second day of hearing, the cross-examination resumed:

Again, the issue of her contract was raised with the Complainant and the fact that she had referred to it in several emails she sent on different dates.

The scope of her duties was raised with her. She said that she was the Office manager, that in she variously did the tasks herself, delegated them, oversaw them, that her job was to manage them and to report back to Mr. McCoy on a daily basis. It was put to her that the duties and responsibilities she claimed to have were “far more than office manager.” She said: “I had my hands in a lot of pots.” “I managed a lot of things for the duration of  my employment.”

She said that many of the responsibilities were shared but one person would organise and make sure that all the different duties were completed, and that was her job, as well as completing duties herself.

The different tasks were put to the Complainant and whether each of them was a shared task and with whom.  Most were shared or delegated tasks.

It was put to her that it was not a small company and one person could not have dealt with all the HR. She said that a manager is to delegate out the responsibilities, that he/she could not complete all of it themselves. She said that she along with Mr. Murphy and Ms. E. dealt with disciplinaries, that it was usually done at the request of the client, and usually if there was an issue. She said that it was not a big part of her job, that she managed it and completed it.

Ms. E. was the team lead of the marketing campaign for the major client ongoing at that time, and Mr Murphy was assisting her on that campaign as well while also working on another campaign.

It was put to her that Mr. Murphy was on the management team since 2018.  She agreed and said that he managed the marketing campaign for the major client on the days Ms. E. was not there.

It was put to her that managers have shared some roles/responsibilities. She said that it depended on what the responsibilities were, that some aspects were not shared, only if she was on annual leave or was not there.

She said that she  would meet with Mr. McCoy almost every morning (when he was in the office – or by phone when he had business) and then delegate out the tasks and ensure they were done.

It was put to her that there were a very broad range of responsibilities listed (on the document she submitted) that would not necessarily come under the umbrella of an Office Manager. She said that was “the nature of the business.”

Her return to work after maternity leave was explored with her. It was put to her that her place of work is the office, which she accepted; and that her contract did not permit her to work from home, generally (no express right) in her terms of employment, which she accepted; that to work from home required permission, which she accepted. On return post-maternity leave, she returned to a different location; and that she wanted to make a change to her office hours on her return (a verbal request was made and was agreed to).

It was put to her that on her return she was waiting one hour rather than two to see Mr. McCoy; that the issues with the (Covid) seating plan were remedied when raised by her. She disputed this, saying that she was not happy with the situation and that she had been put by a window, only after complaining. She re-iterated the national Covid situation at the time, and her personal home and family circumstances, giving rise to her concerns. She said that there was no Covid Officer, no temperature checks (with people coming in for interviews), no masks in the office, and no contact tracing. She said that she was very anxious as a result and that she raised the issue in relation to the failure to implement the Covid regulations when requesting to work from home. It was put to her that the HSA was satisfied with the regulations in the office. The witness disputed this saying “that was months later.”

She said that (in relation to her request to work from home) she texted Mr. Murphy as a colleague, not to ask his permission, and that after that, she asked Mr. McCoy. She said that the only Return-to-Work meeting she had was in relation to a day off, not in relation to maternity leave. It was put to her that the Respondent’s evidence would be that Mr. Murphy talked to her in relation to Return-to-Work and in relation to working from home. The Complainant said that Mr. Murphy told her that Mr. McCoy “wouldn’t let me work from home.” She said that she was told that female employees who have children are less productive/efficient and are therefore not allowed to work from home. It was put to her that some employees (not at management level) do work from home; and that it was explained to her that management could not work from home.

There was a document put to the Complainant entitled: “Meeting: Roles & Responsibilities re: forthcoming year.” She said that she did not recall seeing it before. She said that she anticipated working on the marketing campaign for the major client for two to three weeks, to help out, as the company was short-staffed and busy. She had not anticipated it running on beyond that, and said that she “never thought this was my new role.” She agreed when it was put to her that she did not feel at that meeting that her role was diminished (as she had understood it was a temporary thing).  She said that she viewed it as her duty to help out for two (2) to three (3) weeks.

The Complainant raised concerns in February. A meeting was held in March. It was put to the witness that Mr McCoy will say that he set up the meeting to listen to her concerns, which she accepted.

It was put to her that at that meeting she proposed a solution. The witness denied this. It was put to her that she proposed her own role within the company. The witness denied this. It was put to her that the Respondent will say that she worked for him for a considerable period and he was happy for her to advance that proposal. The Complainant said that the meeting in her eyes was to clarify that her role was no longer available, and why she was not told before returning from maternity leave. She said that the ‘solution’ was presented to her, not something she proposed or came up with. She said that this was why she asked for the meeting to be recorded.

It was put to her that her job was not removed and that she still carried out most of the tasks. She denied this. It was put to her that was produced at the meeting and all members of management had sight of it, and your own email correspondence supports that. The witness said: “No, I don’t believe it does.” It was put to her that she wanted a new role. The Complainant said: “I stated numerous times that I wanted my old role back.”

On April 8th, 2021, Mr. Murphy followed up (in relation to the meeting on March 3rd), on behalf of Mr. McCoy. The Complainant was asked if she had come up with a role. She said that it was not her responsibility. She said that the role was suggested to her (a quality control manager job). It was put to her that she would not engage with Mr. Murphy in relation to the role. She said that he brought it up in a flippant manner to her, that she did not want to engage with him, in person; that she thought her role deserved more respect than that.

It was put to her that on April 12th, 2021, it was set out. She said that was the first time it was properly set out to her.

She was asked whether it was suitable alternative employment. She was asked about “coaching” and whether she would be suitable to identify the training needs of employees. She said: “I would have needed training myself.” It was put to her that she would have been dealing with agents – disciplinary, breaking policies, lateness, absenteeism. She said: “That’s where I would have seen my skill set.” She said that what was proposed was different to HR, it was more L&D, and that is sounded more extensive than what she was used to doing.  It was put to her that this role was required for the purpose of the business. It was put to her that she refused to deal with Mr. Murphy. She said that he offered her the role by email and she replied to him by email. It was put to her: “You didn’t want to delve into the role?” She said: “I wouldn’t accept that.” (Copy of email submitted.)

The Complainant said that Mr. C. rang her personal phone on the first day she was out sick (May 17th    2021) and that she did not answer this. It was put to her that he called her on her personal mobile but he also emailed her (on her work email – May 17th at 5.33pm). She said: “I was absent from work.” It was put to her that the Respondent had taken certain steps to resolve the issue.

It was put to her that she lodged a grievance on June 21st , 2021. She said: “I believe that I raised my grievance originally on February 24th, 2021.” She was asked whether she took part in any formal grievance meeting? She said: “No.” She said that she believes that she aired her grievance with Mr. McCoy in February , then followed up with a formal grievance in June. She said that seven (7) days later, she emailed to follow up. She was asked whether if she was following the procedure, she would have engaged with the meeting. She said that she did things backwards, had the grievance meeting first, then emailed to follow up. She said that she was out sick at the time, that there were months of going back and forth between each other. She said: “I engaged as best I could.” She responded on July 1st, 2021, referring the case to her WRC complaint.

On Re-direct

It was put to the Complainant that the Employee Handbook [2019] sets out the grievance process at page 16; and that the booklet of documents the Respondent produced the day before the hearing had a [2020] date on it is an entirely different to the previous one, to the policy that the Complainant was given by Mr. McCoy. It was put to her that the policy she was given [2019] did not call for a meeting. She agreed.

Final Submission on behalf of the Complainant

The Solicitor for the Complainant submitted that the rights around pregnancy, maternity leave, return to work, the rights around that particular class of person involve a particularly protected class.

He submitted that this case started out as the Complainant making a complaint that she was not returned to her role of Office Manager. He said that first, she was told she was never the Office Manager; but the transfer form (TUPE) identifies her as the Office Manager and the letter from the Solicitor for the Respondent says states that her job has never gone away and there is no need for an alternate job because it was not gone. Then, she was told it was her responsibility to look for another job, an alternate role. He submitted that the terms of the legislation mean that if an alternate role suitable to the employee is required, the responsibility for looking at that is the employer’s. He highlighted the evidence that had been heard at the hearing, in that regard.

He said that the Respondent was saying to the Complainant at the first meeting in December and again in March, that she was to go away and look for another job. He submitted that is not the way the legislation is written. He submitted that for whatever reason – and that they still could not get to the bottom of this – the reality of this is that the Complainant’s title was gone, her job was gone, and her responsibilities were gone; that the Call Centre Manager did not even know what the Complainant’s title was. He submitted that Mr. McCoy would not accept the Complainant’s title even though he signed the TUPE form. He submitted that Mr. McCoy should have sat down with the Complainant - not the call Centre Manager - the CEO should have done it. He said that it was a very basic procedure to follow, that alternative employment that is suitable to the employee is provided and that was not done here. He submitted that she came back in December 2020 and between then and up until April 2021, it was denied five (5) times that the Complainant was the Office Manager. It was all deflection and then an offer of some kind only came in April 2021, rather than deal with the grievance and engage with the Complainant. He said that the company concentrated on changing its policy (subsequent to correspondence from him) and then criticised the employee. He said that by May 2021, the Complainant was out on sick leave. She was back six (6) months at that stage.  He submitted that:

1.       The Complainant discharged the onus of proof to shift the burden of proof.

2.       That onus had not been discharged by the Respondent.

He cited his written submission.

As per the Respondent’s Statement of Opposition/ As per the Respondent’s written submissions:

The Respondent denies the wrongdoing in connection with the complaint by the complainant. The Complainant went on maternity leave from 8th April 2020 and returned from leave on 7th December 2020. During that period the company experienced substantial growth and all manager roles changed. It submits that the Complainant was never officially an Office Manager but was a Manager.

It is denied that the Complainant was excluded from any management meetings. The request for working at home was declined as the Complainant is a manager and all managers are obliged given the nature of the business to work from the office. There is no discrimination and it is denied utterly that there was any suggestion that the complainant’s position in particular was refused because she has children at home. It is denied that there was any discrimination based on gender and family status.

By medical report dated 27th May 2022, the company doctor deemed Ms Hurley was fit to engage with her employer regarding her perceived work-related concerns. To date she has failed to do so.

The Complainant has made two complaints against the Respondent company alleging that:

a)     The Complainant has not being restored to the role of Office Manager a position she alleges that she held prior to going on maternity leave and that she has not been provided a suitable alternative role within the company in contravention of Section 30 and Section 31 of the Maternity Protection Act 1994 (hereinafter "MPA")

b)    That the Complainant is being discriminated against on the basis of gender and family status as a result of the Respondent refusal to permit the Complainant to work from home in contravention of Section 77 of the Employment Equality Act 1998 (hereinafter "EEA)

Factual Background

The Complainant commenced employment on the 3rd August 2015 with Smart Traveller Concierge and her employment was later transferred to Eazy Connections Limited trading as Complete Outsource Solutions.

The Complainant holds the position of manager in the Respondent company. On or about the 8th April 2020 the Complainant went on maternity leave until September 2020. On the 7th September 2020 the Complainant requested an extension of 5 weeks to her maternity leave. The Respondent Company acceded to the request.

The Complainant contacted the Respondent Company on the 16th October 2020 and required additional leave. The Complainant requested to use 3 holidays days per week and 2 days unpaid until the 4th December 2020. The Complainant returned to work on the 4th December 2020. The Respondent sought to change her start and end work hours. The Respondent company agreed to this request.

On Sunday the 3rd January 2021 the Complainant sent a text message to Mr. Jason Murphy enquiring if Mr. Jim McCoy of the Respondent Company would have any issue with the Complainant working from home. (Copy of the text submitted.)

On or about the 5th January 2021, Mr. Jason Murphy spoke with the Complainant in relation to her request and Mr. Murphy indicated that all members of the management team were required to work from the office. The Complainant is a manager in the Respondent company and consequently her role was not suitable for remote working.

On the 5th January 2021, the Complainant attended an operations meeting with other members of management. The purpose of the meeting was to discuss responsibilities of management for the year ahead. (Copy of the document submitted)

On the 5th January 2021, the Complainant emailed Mr. Jim McCoy, the Managing Director, requesting to work from home in circumstances where that the role assigned to her did not require physical presence in the office. (Copy of the email submitted)

On the 5th of January 2021, the Respondent emailed the Complainant indicating that: "Further to our discussion earlier today in the boardroom in relation to the duties that all members of the management team will be taking over for the coming year, we do not feel that it is suitable for any member of the management team to work remotely at present." (Copy of the email submitted)

The Respondent company offered to organise a socially distanced office location. The Complainant indicated that:

"However, If jim is insisting that I attend the office to carry out my duties I have no choice but to” (Copy of the email submitted)

It is respectfully submitted that the Respondent requires all management to work at the Respondent's employment. The Complainant holds the role of manager with the Respondent's employment. The Complainant was issued a contract of employment when she initially commenced her employment. It came to the Respondent's attention that the Complainant's contract of employment was not in the Complainant's Human Resource file. The Respondent company made enquires with the Complainant in relation to this missing contract in circumstances where the Complainant is responsible for managing employment contracts within the employment. The Complainant has confirmed via email on the 3rd March 2021 that she in fact has the contract of employment in her possession and failed to return same to the employment. (Copy of the email submitted)

It is specifically submitted that the following clause is in every employment contract in the Respondent company and it provides that: "You will be required to be flexible in this position and must be prepared to undertake such other reasonable duties as may be assigned to you by the Company from time to time. Such duties can be outside the area of your normal work.”

The Complainant was on an extended period of maternity leave between the 8th April 2020 and returned from leave on the 7th December 2020. The Respondent company as an organisation has experienced substantial growth over the last period. This growth has required members of staff to adapt to the requirements of the company on an ongoing basis.

The Complainant attended a management meeting on the 5th of January 2021 and at this meeting the tasks and responsibilities were assigned to the Complainant along with the rest of her management colleagues. A copy of the Responsibilities document handed out at the meeting was submitted.

·       On the 16th February 2021, the Complainant emailed Mr. Jim McCoy, the Managing Director, of the Respondent Company outlining that she was confused in relation to her roles and responsibilities in the Respondent Company. A Copy of the email was submitted. The Complainant maintains that before going on maternity leave the Complainant had exclusive responsibility for the following duties:

§  Roster management

§  Payroll

§  HR administration

§  HR implementation such as disciplinaries etc

§  Office stock and supply management

§  Call listening and evaluations

§  Daily reporting on calls and call volume

§  Overseeing and creating office policies to ensure they are being enforced

§  Updating holiday file

§  Agent performance management

§  Scheduling and attending ops meetings

On or about the 3rd March 2021, the Complainant had a meeting with Mr. Jim McCoy in relation to her roles and responsibilities in the Respondent Company.

Notwithstanding the allegations advanced by the Complainant, it was made abundantly clear that the Complainant has a role in the Respondent company.

The Complainant asserts that her role exclusively carried out these duties. In an email from Mr. Jim McCoy dated 5 th March 2021 to the Complainant (Copy of the email submitted.) it was highlighted that:

“In your previous emails to me outlining your roles you mention the following roles and responsibilities you were completing before you went on maternity leave but I must highlight that a majority of these responsibilities were shared between yourself, L. and Jason [Murphy].

Roster management — Done by L.

Payroll done by O. — Bank Transfers done by yourself and Jason

HR administration — Most of the staff members had no contracts before the visit from the W.R.C.

Office stock and supply management — Done by L.

Call listening and evaluations — Also completed by L. and Jason

Daily reporting on calls and call volume — Also completed by L. and Jason

Overseeing and creating office policies to ensure they are being enforced—also Done by L. and Jason

Updating holiday file — also done by L and Jason

Agent performance management — also done by L. and Jason

It is submitted that the foregoing email was sent following the meeting between Mr. McCoy and the Complainant on 3rd of March 2021. The Complainant at this meeting aired her concerns in relation to her role within the Company. The Complainant proposed developing a role in the Company within the Respondent's company that suited the needs of the Complainant. The Complainant indicated that it would take her 4/5 days in order to return with a proposal.

On or about 8th April 2021, Mr. Jason Murphy followed up with the Complainant in relation to her suggestion to allow her define a role to suit her needs in the Respondent Company. The Complainant responded indicating that it was not her role to define a role for herself. Mr. Murphy suggested to the Complainant that there was a need for a full time Quality Control Manager in the Respondent Company. The Complainant was not willing to engage in relation to an alternative role that would suit the Complainant’s  needs as suggested by the Complainant.

On or about 12th April 2021, Mr. Jason Murphy emailed the Complainant offering her the role of Quality Control Manager and defined her responsibilities within the role based on her request to the Respondent to define a new role for the Complainant. (Copy of the email submitted)

On 15th April 2021, the Complainant responded indicating that she was not prepared to delve into a discussion with Mr. Murphy in relation to the matter as this was creating the Complainant great stress and anxiety. The Complainant indicated that she would prefer to correspond with Mr. Jim McCoy in relation to the position either through correspondence or via a meeting with her representative. (Copy of the email submitted)

On 14th May 2021, the Complainant corresponded with Jason Murphy, Jim McCoy and C. setting out a number of issues in her employment. The Complainant maintained that her role was diminished within the company and that this has allegedly created severe anxiety and stress. On 17th May 2021 the Respondent reached out to the Complainant by way of email and phone. (Copy of the email submitted)

On or about 21st June 2021, the Complainant raised a formal grievance with the Respondent Company. On 28th June 2021, an email was sent inviting the Complainant to meet with C. and Jason Murphy. It was indicated to the Complainant that the Respondent company wished to discuss the scope of her role given the issues the Complainant is experiencing with a view to engaging and resolving these issues. (Copy of correspondence submitted)

On 1st, July 2021 , the Complainant emailed the Respondent company indicating that she had referred the matter to the Workplace Relations Commission. (Copy of email submitted)

The Law

Maternity Protection Act 1994

The Maternity Protection Act 1994 provides that an employee who was on protective leave is entitled on expiry of that protective leave to:

a)     Return to work in the job they held immediately before the start of leave period, and

b)    Under terms and conditions that are not less favourable and which incorporate any improvements to those terms and conditions which the employee would have been entitled to if not absent from work

Section 27 of the Maternity Protection Act 1994 provides that: 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; and

(b)  the terms or conditions of the contract—  relating to the place where the work under it is required to be done, the capacity in which the employee concerned is to be employed and any other terms or conditions of employment are not less favourable to the employee than those of her or his contract of employment immediately before the start of the period of absence from work while on protective leave, and (ii) incorporate any improvement to the terms or conditions of employment to which the employee would have been entitled if she or she had not been so absent from work during that period.]

3) For the purposes of this Act one employer shall be taken to be associated with another—

(a)   if one is a body corporate of which the other (whether directly or indirectly) has control; or

(b)  if both are bodies corporate of which a third person (whether directly or indirectly) has control.

It is respectfully submitted that the Complainant was returned to her role in the company as a manager. It is submitted that the Complainant's pay and conditions remained unaltered. The Complainant, as a manager, worked on many different duties with other managers in the Respondent company. The work carried out by the Complainant is not unusual for the position the Complainant holds in the company and from time to time the Complainant may be asked to carry out other duties to meet the needs of the business.

The Complainant was immediately returned to her position as manager on her return to her employment on 7th December 2020. The Complainant was involved in a management meeting on 5th January 2021 where the duties and responsibilities for each manager and team leader was discussed in detail and allocated to each party without any issue at that time.

It is respectfully submitted that the Respondent company has being growing significantly before, during and after the Complainant's maternity leave. It is submitted that the requirements of the business most certainly changed to a significant degree in the period during the Complainant's maternity leave and in the period that followed. It is submitted that every employee in the Respondent Company has experienced changes to their duties and responsibilities during this period so as to ensure that the Respondent company adjusts to the requirements of the business. Notwithstanding, it is submitted that the Respondent company did not diminish her role as alleged. The requirements of the Respondent company have changed to meet the needs of the business and consequently this requires the Complainant to fulfil this obligation within her role as manager.

The Labour Court has held in Meath County Council v McDermott EDA 21/2013 that as long as the work assigned to an employee on their return is appropriate to their grade, they do not have the right to return to the precise duties they were doing before going on leave. It is respectfully submitted that this case applies to the present facts in circumstances where the Complainant was returned to her role as manager and assigned work appropriate to her position as manager. It is submitted that the Complainant's position was not changed as alleged and instead the Complainant continued in her old role as manager and was required to address new duties due to the business needs of the company.

Without prejudice to the foregoing, it is submitted that the Respondent facilitated the Complainant’s concerns and offered her an alternative position in an effort to satisfy her needs and concerns with her role in the Respondent company. It is submitted that the Complainant failed to engage with the Respondent in relation to this offer and failed to meet the Respondent company to discuss the matter in full when invited to do so. It is respectfully submitted that the Respondent company has not breached the Maternity Protection Act 1994 as claimed by the Complainant.

Discrimination on Grounds of Gender and Family Status

The Complainant alleges that she was subjected to discriminatory treatment on the grounds of gender and family status in relation to her conditions of employment. The Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. Section 85A of the Employment Equality Act provides that:

Section 85A of the EEA refers to the shifting of the burden of proof from the Complainant to the Respondent states as follows:

"(1)       Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary

(2)         This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to the complainant.

Section 6(1) of the EEA 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).”

Section 6(2) of the EEA defines the discriminatory grounds of gender and family status as follows:

(2) 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")

(b)   That one has family status and the other does not ( in this Act referred to as "the family status ground")

It is submitted that "family status" is defined in Section 2(1) of the EEA as follows:

"family status " means responsibility—

(a) as a parent or as a person in loco parentis in relation to a person who has not attained the age of 18 years, or

(b) as a parent or the resident primary carer in relation to a person of or over that age with a disability which is of such a nature as to give rise to the need for care or support on a continuing, regular or frequent basis,

and, for the purposes of paragraph (b), a primary carer is a resident primary carer in relation to a person with a disability if the primary carer resides with the person with the disability;

The Complainant makes the case that she has being discriminated on the grounds of gender and family status as a result of the purported actions of the Respondent in offering the Complainant tasks that were below her grade in the employment. It is the Respondent's case that the Complainant role was not in anyway diminished or reduced. The Complainant's case retained the role of a manager and was assigned tasks and duties in line with her role as manager.

It is the Respondent's case that all members of management were required to undertake duties required by the needs of the business under the contract of employment irrespective of their gender and consequently the Complainant's compliant does not amount to gender discrimination.

The Labour Court has highlighted in the case of Tesco Ireland v Swift EDA 014 that:

"The European Court of Justice in the case of Julia Schnorbus v Land Hessen C79/99 has stated that direct discrimination can only arise where the difference in treatment complained of is based on criterion which is explicitly that of sex or is necessarily linked to a characteristic in dissociable from that of sex. As this Court has stated in the case of Tesco Ireland and A Worker DEE014, while the responsibility for childcare may in practice fall to a disproportionate degree on women, it cannot be said to be a characteristic indissociable from a woman's gender. The Court cannot therefore accept the complaint is one of direct discrimination.

The Respondent submits that the Complainant still retains the role of manager within the Respondent company. The Complainant shares a number of duties with other members of the management team and these can be interchangeable amongst the management team subject to the needs of the business. It is respectfully submitted that the business needs of the Respondent company are always growing and consequently it is important to have a degree of flexibility in order to meet these needs.

The Complainant also maintains that she was discriminated on the grounds of gender and family status arising from the alleged failure on the part of the Respondent to objectively assess the Respondent's request to work from home remotely.

It is respectfully submitted that the Respondent Company appropriately considered the request of the Complainant in relation to working from home. The Respondent company discussed this matter with the Complainant and indicated that the management team was not permitted to work from home due to the nature of their role as managers. It is submitted that this decision was based on the business needs of the company and was not based on a criterion or policy that was explicitly linked to the Complainant's gender or family status.

Conclusion

It is respectfully submitted that the Complainant retained her role as manager on her return from maternity leave on the same conditions and terms. The Complainant and other members of management was assigned in line with their position with the Company in order to meet the business needs of the company. Without prejudice to the foregoing, The Respondent Company acted reasonably throughout their engagement with the Complainant and offered her an alternative position with equivalent terms, responsibilities and duties.

It is respectfully submitted that the Complainant has not established a prima facie case under the Employment Equality Acts given that the decision to assign duties and responsibilities to the managers was a decision that was applied to all managers based on the business needs of the company and not based on a criterion or policy that was explicitly linked to the Complainant's gender or family status. Furthermore, the decision to not allow the Complainant to work from home was not in any way linked to the Complainant's gender and family status given that this applied to all managers in the Respondent company.

It is respectfully submitted that the Complainant has not established an entitlement to redress under the Maternity Protection Act 1994 or under the Employment Equality Acts.

Two witnesses were called on behalf of the Respondent, at the hearing.

Mr. McCoy, owner/CEO – first witness for the Respondent

He outlined that his role was  CEO, that he was responsible for the direction of the company, growth, handling issues at higher levels, basically “steering the ship”. He said that he had been involved in outsourcing for twenty-eight (28) years. He said that he had previously worked in general outsourcing and he said that the difference with this business is that it specialises in areas –  it works for well-established brands. He said that the company takes information by call/mail and also proactively outbound calling/mailing. He said that the Respondent represents the companies and makes sure that their brand is safe with us. He said that they are about quality control and credibility, that the client has to be safe in the knowledge that the data is safe and that their brand is safe with the Respondent company.

He said that he previously had a business with Richard Ennos – SmartTraveler – which Covid ended for various reasons. He said that the Complainant’s role in that business involved checking bank balances, payments, general work. Then her work transferred to the Respondent business. He said that there were a lot of part-time staff (approximately seventeen (17)), about the equivalent of twelve (12) or thirteen (13) full-time equivalent. He said that the company needs 24 hour cover, and therefore, it employs lots of part-timers. He said that the job specification involves a daily management meeting, daily reports - he said that from time to time, he would have done that with Mr. Jason Murphy, L. or also make calls or take calls himself. He said the shared responsibilities included checking calls, quality control, HR, interviewing people. He said that the Respondent company prior to the Complainant going on maternity leave was a completely different organisation to the one the Complainant returned to. He described it as being “lightyears apart”, like the difference between “Manchester United and Dunfermline.” He said everything grew “exponentially.” He said that “everything was twice as hard because of Covid, that it was exciting and it was great, but you were trying to navigate the covid restrictions especially in terms of the shared services business.” He said that “not one person or two people could continue to have the roles they had previously.” He said of the Roles and Responsibilities document that “other people would have carried out these tasks”, “everybody pitched in”, “everybody did everything together.” He said that when the Complainant returned from maternity leave, that the Respondent company had the full-time equivalent of 80-90 employees. He said that prior to her going on maternity leave, there was no requirement for remote working, that remote working came in on the back of Covid. The witness said that his view was that remote working could work but not at management level, that none of the management team are allowed to work from home. The Complainant took maternity leave and additional maternity leave  - the witness said that she was “quite entitled” to do that and that “whatever she looked for she got.” She returned to work in December 2020.

The witness outlined some of the large contracts his company was pitching for and doing work for at the time of the Complainant’s return (December 2020) - they largely involved businesses doing home deliveries, where demand increased enormously due to Covid – he said that his time was taken up with this. He said that another aspect of the business involving hotels got quiet when Covid was happening.

He was asked about Ms. Hurley’s title in the employment. He said that she was part of the management team. He was asked whether when she returned if she was part of the management team. He said that it was not possible to apply the structure they had previously, that it was not scaleable, that it would not be possible for one person to do the jobs on the list.

He was asked about the Complainant’s contract of employment and whether she received it. He said that she had. He said that he recalled a conversation where the Complainant had suggested it was in the attic and needed a bit of time to get it. He said that he wanted to put her in the right position whether she chose it herself or not, that he wanted to get the right team to drive it on, wanted good people and needed good people. He said it made no sense that he would renege on someone.

He said that in her role in relation to HR administration, she had responsibility in relation to contracts, that she was responsible for their creation of employee handbooks, that she had control of employee contracts.

He was asked about January 2021 and whether Ms. Hurley contacted him in relation to her employment. He said that she did, she was back and wanted to know where she stood. He said that he was glad she was back, that the organisation had “gone nuts”, that they needed “good people to drive this on” and “whatever role she felt comfortable in, whatever slice and sliver, I was quite happy for her to go after it.”

He was asked about working from home. He said that he told her to apply. He said that it was a “slight difficulty”, that he knew the Complainant in the business for a long time but that he had his principles – he does not believe in management working from home.

He was asked why he required management to be on site? He said that “our money is made on our people. That’s our revenue.” He said that his pool of employees were “young, transient,” that there is “very little loyalty” and that they “have to be monitored” and managed.

Ms Hurley did work from home. He said that there was some issue - a one-off - and it was required; he said that if someone was stuck and he did think he would ever have a problem in a situation like that, but that management were not permitted to work from home, on a permanent basis/long-term.

He was asked when he became aware of the Complainant’s concerns in relation to her role/responsibilities. He said: “I was doing a million and one things.” He said that he assumed that Mr. Jason Murphy and L. “would be working towards the centralised activity.” He said that “things started to get formal”, that “there was a wall going up from [the Complainant] and that process was required” He said it was a “formal, legal, my rights scenario” adding that “my door was always open.”

He said that the email of February 16th, 2021, offer a meeting, which took place on March 3rd, 2021. He said that the Complainant looked to have the call recorded. He said that he was in business thirty (30) years and never had anyone ask to record a conversation. He said that he “just didn’t think that was right” and that he was “there to listen and to solve the situation, if I can.” He said that he told her that the “business has grown crazily” and to “have a think and see what [she] can do to be productive.” He said that he “thought that was it solved.” He said that “she thought that she didn’t have a role - it would not have been in my interests to renege on someone who was good in the industry - it would have been stupid.” He said that “finding a role that she would have been happy with and well able to do, in my head that was a no-brainer.”

He was asked if her wage/salary changed. He said that “she’s still with me – and to this day – she still gets her holiday pay.” [Adjudication Officer’s Note: It was clarified by the Complainant that she does not.] He described the Complainant as being “in the industry a long time” and “competent, capable.”

He said that prior to maternity leave, the management team consisted of himself (Mr. McCoy), Mr. Jason Murphy, L. and the Complainant (Ms. Hurley). He said that “the BrainTrust came together every single day to decide what we were doing for the next week, or two to three weeks or whatever.” He said that “if the guys were there, [he’d] meet them; If I was out of the office, [he] rang in.” He said that it is “all about individual clients – is everything okay?” He said that they “may have to deal with a specific issue.”

Post-maternity leave, he said that there were seven (7) or eight (8) people in the room whom he listed. They included himself (Mr. McCoy) and Mr. Jason Murphy. [Almost everyone else was new].

He was asked how does the Complainant interact in that regard on her return from maternity leave? He said that “client growth, surveys, data – 4-6-9 months’ time, this is where we’re going to be.”

He was asked whether he would not permit the Complainant to work from home because she had a child. He denied this, citing his thirty years in business and suggesting that he had employed probably about two thousand people in that time; and he had had employees at all stages of life – people with newborns, teenagers etc.; and that he had helped people who have had issues, when they arose.

On Cross-Examination

The witness was asked whether the Complainant was the Office Manager. He said that “depends on what the definition of what office manager is.” It was put to him that an Office Manager is “the manager of the office.”

The Transfer of Employee Letter (TUPE) was put to the witness, that it was signed by him, and that it  describes the Complainant as the Office Manager. The witness said that “Richard Ennos was handling this part of it; he told me he did it. I said I’d sign it.”

It was put to him: “For clarity, you confirmed [that she is the Office Manager] at a later stage, through your Solicitors by letter dated 03/08/2021, which states “acknowledging that her role is Office Manager and rejecting that it was necessary to offer any other role.”

The make-up of the management team was explored with the witness. It was put to him that he said in his evidence that the Complainant was part of the “BrainTrust” prior to her going on maternity leave, comprising four people including the Complainant and the witness. The were new people (four or five) added to the group. The witness said that new extra people came on as the Respondent company won two (2) new large new contracts. It was put to the witness that: “You heard Ms. Hurley’s evidence that she was not at management meetings?” He said: “I wasn’t at the lower end of stuff. I was out doing other stuff.” He said: “We’d no problem with Ms. Hurley being on the management team.”

The email of March 5th, 2021, was put to the witness in which Mr. McCoy states, at the last paragraph: “I’d said that it was impossible to say that you were part of the management team or not…” It was put to him that pre-maternity leave, the Complainant was a member of the management team and post-maternity leave, the position was the email of March 5th, 2021.

It was put to the witness that he was saying in his evidence was: “I don’t know what her function is….because she has to find her function – I was trying to find out what her role would be, or whether she was going to create a role” but it was put to him that “we have already established no need to offer a different role” as the Complainant was the Office Manager and therefore there was no need to offer an alternative role. It was put to the witness that his evidence at the hearing contradicted his email of March 5th, 2021. The witness said: “I personally never said that she was Office Manager.” The Transfer of Employee document (TUPE) was re-iterated to him and that Eazy Connections became her employer.

It was put to him that part of the complaint made by the Complainant was that she was excluded from management meetings – the relevant section of his March 5th, 2021 email was put to him. He said: “I didn’t know there was any issue there, in relation to being excluded from management meetings.” The witness opined that he thought there was a difference between operation meetings and management meetings. It was put to him that his Counsel was specific in asking the question; he was asked if he was “making it up as [he was] going along”; It was put to him that he was now making a distinction between the management team and operations team. The witness suggested that he may have “got my wires crossed.”

The witness said that: “There was no clarity. She was discontent she said herself. We had to define what she was going to be doing. She was going to come back and define that.”

He said that the language changed “because we didn’t know what her role was.” He said that: “She was to define her role.” He said: “How in the name of god could we know what her role was until we knew what she was [going to do]?”

It was put to him that he was saying that she was more than welcome to be on the team but how could she contribute? He said: “That was up to the people who were on the floor on a daily basis. I wasn’t there every day. We had no problem with [Ms. Hurley] coming back into the organisation.” And that she “needed to define her own role.”

He said that the workforce trebled, that the client base doubled. He said that growth signs were happening from November/December [2020]. He said that Covid was raging at that stage, people could not go to the shops and one of their online supermarket clients became exceptionally busy (in terms of online shopping). The company was also supporting a national courier company and similarly it was extremely busy at that time, for the same reason. He said that he was “trying to manage a business, trying to keep the customers happy”, he had “to leave some functionality to the other people.”

The witness was asked: “When did you decide that the role had changed dramatically?” He said: “When she came back – coming into an environment with a big growth pattern.”

He was asked: “When did you start the analysis of her role?” He said: “When she came back.”

He was asked: “What did that analysis consist of?” He said: “Looking at all the chores that needed to be done to take advantage of the growth, where we needed strengthening, the different research stuff we needed to do, the work map…”

He was asked: “Did you involve Ms. Hurley in any discussions?” He said that: “She had to come back before I knew she was back.” And that he “had that chat with her the minute she came back.” He asked her: “Is there any area in particular she’d like to get stuck into?” He was asked: “Did you then start the analysis of the role?” He said: “She was then going to come back to me and tell me what her role was going to be.” It was put to the witness: “You do realise now, that none of this was put to Ms. Hurley, in cross-examination. It was put to her in relation to March 2021 but not December 2020.” The witness said that it was a general conversation and that it was a positive conversation, which he had with her in December 2020/January 2021 when she came back from maternity leave. He asked: “But why wouldn’t I have had a general chat with her. She worked in the business for years.”

It was put to the witness, for clarity, if he was now saying that there was a general chat in December 2020 where the Complainant was asked if there was any area she would like to get involved with; and then met her on March 5th, 2021, (specific meeting in March).

He said that when she came back from maternity leave “the guys at the lower end probably asked her to work on the [major client marketing campaign] account.” He said: “She was getting a wage. Why wouldn’t she get stuck in?” He said that she sent emails in relation to that campaign.

The witness was asked in relation to the analysis he said he had done, as to whether he had any documentation looking at the Complainant’s role. He referred to the document (written by the Complainant) setting out her Roles & Responsibilities. He said that: “It wouldn’t have made any sense – 20/30/40/ things she was doing – we couldn’t have functioned – we couldn’t take advantage of the growth.”

He was asked: “When did you determine the roles that you were going to assign to her?” He was asked again to clarify in relation to the general chat and the meeting on March 5th, 2021. He said: “We – the company – were doing the analysis. I understand that. She [the Complainant] was tasked with defining the role.”

He said that in early January, there was a pressing situation with “all hands to the pump” with the major client marketing campaign. He said: “that would not necessarily be [the Complainant’s] role going forward, but everyone helping out at that junction with that function.” He said that she was obviously going to be involved in areas that she had a skillset.

He was asked what skillset the company required. He said that there were “new clients, new call volumes, new email volumes, new clients looking to come onboard; and that there was an onboarding problem, a quality control problem and a HR problem. Everything to do with taking on 20-30 people. These were the roles that needed growth.”

He was asked: “When did you discuss that with her?” He said: “I didn’t have any chat with her.”

It was put to him that the expectation was in December that she was to come back to the role she had prior to taking maternity leave. He said: “My intentions at all stage were positive and good.” He said that he had a general chat with her in December; there was a formal meeting in March, and that his intention at all times was to work positively with her.

It was put to him that “on March 5th, 2021 [the Complainant] was no longer in the management team until her role was sorted out. Where’s the positivity in that?” He said: “The meeting wasn’t: ‘You’ve got to do this; You’ve got to do that.’” He said that there were “so many roles but she couldn’t do them all.” He said that there was “nothing negative”, that “nobody was wagging any fingers”, that there was “nobody saying you’ve got to do this, and you’ve got to do that.” He said that on March 5th, 2021, it was discussed as to the Complainant making a positive contribution - a new role and the requirement to cover the cost of her salary. It was put to him that was negative, that it was being said to the Complainant in that meeting that: “You’ve got to justify your cost.”

The witness said that he was a businessman and that “you’ve got to create.” He said that was “just a business comment”, “it wasn’t a negative comment.” It was further put to him that he had also in that meeting denied that she was the Office Manager – according to Mr. McCoy’s note of the meeting, but the Complainant already established she was the Office Manager.  It was put to the witness that it is not simply limited to his Solicitor’s letter - there is also the TUPE form and also his Solicitor’s email identifying the Complainant as an Office Manager.

It was put to the witness that he had produced a booklet of documents the previous day which seems to describe Ms. Hurley as  the Office Manager at Page 187. [Employee Information: Ms. Hurley – March 10th – Respondent’s booklet]

It was put to the witness that a grievance was raised on June 21st, 2021, and that he sent a copy of the employee handbook (2019). He said: “I didn’t physically send it myself.” It was sent from his email address in response to a Data Subject Access Request (DSAR), on Sunday, June 27th, 2021. It was put to him that the Respondent’s booklet of documents, included a copy of the 2018 and the 2020 handbooks. He was asked: “Why not the 2019 version?” The witness said that he worded the letter and asked for it to be sent from his email address. He said that he didn’t actually go and fetch the employee handbook himself. He said that the Complainant should have been sent the most recent version. He suggested it might have been an administration issue when the document was being attached. He said: “If there was a more recent one, it should have been sent.” It was put to him: “So, you never dealt with her grievance.”

It was put to the witness that the Solicitor for the Complainant sent a letter criticising the company for not complying with legal requirements. The witness said that he “instructed it to be sent [the email] and whatever book was to be found or pulled – was to be sent.”

It was put to the witness that informally and in writing over several months, no resolution was provided by the company; that the Complainant allowed a further time to elapse and the only definitive position taken by the company - and notwithstanding the grievance procedure is not in compliance with law. The witness said: “I presumed that we had sent the grievance procedure, and under ‘normal law’ I thought we would look for a meeting.”

It was put to the witness that there is written confirmation from him – as to how the company now proposes – to comply with its legal obligations with respect to investigating the grievance. The witness said that he “looked to meet to try to resolve it.” It was put to the witness that his Solicitor sent a standard holding letter on July 13th , 2021, (stating that he was taking instructions) and then their substantive response on July 23rd, 2021. (Copy of Letter submitted)

It was put to the witness that the company’s position is that the Complainant’s complaints were misguided - there was no subsequent (formal) investigation of the complaints.

It was put to the witness that the meeting he was seeking was not the policy set out in the 2019 handbook which had been sent out as the company’s policy in force at the time – that it does not exist in this handbook.

It was put to him that it does not eliminate that a letter, on July 27th, 2021, was sent looking to set up a meeting, to negotiate, in good faith, and that letter was responded to (Copy of Letter from Solicitor for the Complainant submitted.)

It was put to the witness that Ms. Hurley’s complaints were fully summarised in the  correspondence and there was no suitable alternative role was offered by him. It was put to him that the issue is straight forward - that Ms. Hurley was not returned to her role as Office Manager; and that the suggestion that she could define her own role is misguided and it only exacerbates Ms. Hurley’s complaints.

It was put to him that the response received on behalf of the Respondent on August 3rd, 2021, was that she was still the Office Manager and that it was therefore unnecessary to offer her an alternative role; and that it is a very different case being put forward in August than is now being put forward [at the hearing].

On re-direct

A company document containing “Employee Information”, which listed the Complainant as “Office Manager” (Copy of document submitted) was put to the witness. He was asked who was responsible for maintaining employee information. He said an [name redacted] employee in IT was responsible for maintaining all confidential information.

In relation to the grievance raised, it was put to him that it was raised by Ms. Hurley on June 21st, 2021, and that there was a letter sent in response dated June 28th, 2021, signed by Mr. Jason Murphy. The handbook was sent ten (10) days later.

The Adjudication Officer enquired of the witness, at the hearing, as to the management structure, and whether all the employees report directly to Ms. McCoy, or whether there is a reporting structure where some employees report to others. He said that they “drive on with that themselves.” He gave examples, saying: “there were pricing issues, especially now; there are workout meetings where they discuss specifics - it is not an official board meeting.”

Mr. Jason Murphy – Witness No. 2 for the  Respondent, gave evidence at the hearing

He gave evidence that he managed the contact centre. He had previously been management prior to 2018; and managed the call centre itself from December 2019. He said that the Complainant was on the management team prior to going on maternity leave. He said she came back from maternity leave in December 2020.

He said that, on Sunday, he received a text message asking if Mr. McCoy would have any issue with her working from home. He said he told her to discuss it with Mr. McCoy on Monday (Copy of the text messages submitted). He said that he met with Ms. Hurley on Tuesday, January 5th, 2021, in the company’s boardroom, and the intention was to outline the roles and responsibilities for all the management team. He said he set up an excel spreadsheet and a copy was shared in the drive with all the management team. At the meeting, it was up on the screen. He was asked: “Did you tell Ms. Hurley her responsibilities?” He said: “No.” He explained that they went through them at the meeting, that the excel spreadsheet was blank before they went into the boardroom, and they listed the items that needed to be done and asked: “Would you be happy doing this/that?” He said that what was being set out were “the roles and responsibilities for the upcoming year.” He said that the Complainant “was part of it – we agreed to share some roles between some people” He gave an example of another employee L. who had worked in another call centre environment previously and had experience of disciplinaries etc. (A copy of the employment information excel sheet was submitted).

He was asked about the email submitted by the Complainant, prior to going on sick leave, in which she raised issues in terms of her roles/responsibilities. He said that she had raised concerns on February 15th, 2021 - she felt that her role was effectively diminished. He said that he and C. discussed the concerns that were raised and sent a letter asking to organise a meeting.

The Complainant’s perceived concerns were raised the witness - that certain functions were taken away and a meeting was arranged between Mr. McCoy and Ms. Hurley for March 3rd, 2021. It was put to the witness that he was not present at the meeting. He was asked if, after the meeting, had he any direct involvement. He said that he was advised by Mr. McCoy as to what was happening. He said that his understanding was that Ms. Hurley was going to come back to Mr. McCoy “with a role for herself”  by April 8th, 2021. He said that she “didn’t want to discuss it [with him]” and that she “preferred all communication in writing or preferred to have a third-party present.”

He said that on April 12th, 2021, an email was sent from the Respondent company to the Complainant setting out “actual tasks/role that we had in mind.” He said that it was “mainly made up of quality checking tickets, quality checking calls.” He was asked why he thought this was suitable for the Complainant. He said that she “would have done some of it previously.” He was asked about the marketing campaign for the major client, and he agreed that it was a big project for the business. He was asked if there was any engagement following the email, whether Ms. Hurley came back with some questions on the role. He said that she corresponded with him, Mr. C. and Mr. McCoy.

He said in relation to the grievance, that there was an expectation that it would be raised formally in writing, within a set time-frame, within a week. He was asked when the first time the formal grievance was raised, to his recollection. He said that it was in one of the Solicitor’s letters.

The June correspondence (between the parties/Solicitors) was put to him.

There was a letter from the Solicitor for the Complainant, setting out that the handbooks were not legally compliant. He was asked who got the employee handbooks changed. Mr. Murphy said that it was a HR company, that the Complainant managed them until then and was the owner of that document on the system as well.

Mr. Murphy said that Mr. C. and himself wrote a letter and posted it on June 29th, 2021, offering to meet Ms. Hurley off-site. (She was on sick leave, at that point). Mr. Murphy said that they also engaged with the formal grievance that the Complainant raised on June 21st, 2021, as well.

On Cross-Examination

The issue in relation to the handbooks was put to the witness. It was put to him that the handbook was changed as a direct result of the grievance raised and the Solicitor for the Complainant’s letter to the Respondent company, highlighting its lack of legal compliance.

It was put to him that the process upon which the company is now seeking to rely was not in the handbook issued to the Complainant. The discrepancies in the different handbooks were put to the witness. [There were three different handbooks – two prior to the complaint; and one subsequent.]

The most recent handbook was introduced, in November 2021, subsequent to the complaint. It was put to the witness that that was not the handbook that the Complainant lodged her grievance under – it did not exist at the time.

The Complainant said that Mr. McCoy does not deal with “the mid-line running of the business” – he said that he and Mr. S.  took it upon themselves to update the handbook, and that a HR company was used.

Mr. McCoy made a mistake when sending the Complainant the handbook – he sent the 2019 version instead of the 2020 version to the Complainant. It was put to the witness that while the Complainant may have had the ownership of them, she did not write them.

The blank spreadsheet was explored with him – he said that the tasks were listed, no duties assigned to anyone and the people at the meeting filled it in together. It was put to him that the Complainant denied the meeting happened, and that she denied receiving the document. He said that it was shared on the management folder on the management drive.

He was asked if it was done on the basis of what had been done in the previous year. He said: “That’s where I got the tasks.” He was asked what the Complainant was doing in the previous year - the tasks were gone through in sections with the witness. He said that it was done “as a collective”, not an individual analysis. He said that it was done “off the top of my head on the Friday sitting down, and there were some things I didn’t think of, at the time.” He was asked about the time-frame it applied to – that there was disparity between his evidence/document, which set out that the roles and responsibilities were for the following year (2021) whereas the company’s position (Mr. McCoy) was that it was “during the period” (i.e. that it was time-limited). He said that it was his view that it was “for the year” but that the list didn’t mean because someone is doing that only and that nobody else is doing those tasks – he said that someone may cover if a co-worker is on annual leave, or a busy period in the business. It was put to him that the list was comprehensive. He said that it was “[his] vision of how the year was going to go”, adding that additional tasks are given on top of the workers’ day-to-day role. It was put to him that the Complainant said that she was never given this and she has never seen it.

He explained that in December, the Complainant was asked to help out with emails [for the marketing campaign for the major client], that it was a very busy time, with Covid and lockdowns etc. He said: “I was doing emails myself.” He said that January was just as busy. He said that, in addition to emails, the Complainant was doing quality checks of tickets (for the major client) and completing tickets and, that if it got a bit quieter, she may have been reviewing other agents’ tickets. He said that he and Ms. E. were leading the team for the major client.

The witness was asked why there is no reference to the major client at all in the Complainant’s list of tasks, when the Complainant was working on it at the time. The client was mentioned for other people, but not for the Complainant. He said that the document was year-long, that was his intention. He said that in a call centre, people come and go. He said another staff member, Ms. T., left three (3) to four (4) months later.

He was asked whether the document provides for Ms. Hurley. He was asked what he understood Ms. Hurley’s role to be. He said: “Manager. Not sure of her job title.” He said: “Not sure. Think it’s Office Manager. I wasn’t in any position to say that you are this or that.” He explained that he was a customer service agent doing the night/evening shift when he was in college. He said he became Call Centre Manager in Nov 2019, (about a month after Ms. Hurley informed the company she was pregnant).

[It was put to Ms. Hurley in cross-examination that he was on the roster, as being on the management team in 2018 – not a dispute in relation to that.]

He was asked: “What was Ms. Hurley’s role?” He said that a lot of responsibilities were delegated out, that she processed payroll – the bank transfer (not wages), emails from Mr. McCoy, prepared the documents for the WRC visit; he said that agents worked forty (40) hours per week and they have to sign off electronically online and the Complainant did that; some work for the major client when the company were busy; some quality check calls.

He was asked which of those responsibilities were returned to the Complainant. He explained that the company had automated payroll. He said that saved approximately four (4) hours per week. He said that change in relation to payroll was made while the Complainant was on maternity leave.

He said, in relation to January 5th and the boardroom meeting that he was under the impression that the Complainant was happy with the roles/responsibilities she was provided. But, she subsequently emailed Mr. McCoy.

He explained that it was his job to make sure the call centre runs on a day-to-day basis. He said that they had made huge changes after he was promoted (after the WRC visit). He said that previously, a lot of staff did not have contracts, but now there is an email alert system, and staff get contracts within 2-3 days.

He was asked about the organisational chart, which he had prepared. It was put to him that the Complainant is the only one without a description, on the chart. He said: “I didn’t know her job title. That’s the god’s honest truth.” When asked about the structure of the chart, he said: “I’m not saying that any team leader needs to report to another team leader, or anything like that.”

The series of emails between April 12th and 15th were put to him.

The document listing employee information (provided for WRC inspection) was put to him, which listed the Complainant as “Office Manager.” He said that he “didn’t know.”

It was put to him that in his response by email to the Complainant on May 7th (numbered para 2), that he requested a list of her responsibilities: “2. Can you send me a list of the job responsibilities that you were completing prior to your maternity leave and I will be able to get back to you with an answer on these.” He said: “Without knowing the responsibilities, I couldn’t answer that question. I know vaguely what people do. I couldn’t answer what everybody up in that call centre does.”

He was asked why he was critical of the Complainant – that he had compared her productivity against the productivity of a call centre agent, and he was asked why he would have an expectation that she would be doing those tasks?

He said that “calls are money.”

It was put to him that in his email of May 7th, he had said: “The company has continued to pay you for the last number of months for what we feel is very little in return in terms of work e.g. 113 emails completed throughout the month of March. A majority of staff embers would have done over 1500 emails during the month of March.”

[The email continues: “As you can appreciate this cannot continue so this is one of the reasons we feel you would be better suited to taking over the role of Quality Control Manager.”]

It was put to him that this was not a manager’s role, that it is an operator’s role. He cited the need for “flexibility”  and said: “everybody else was doing it.” It was put to him that he was criticising her for not doing the same number of emails as the front-line operators, but that was not her role.

On re-direct

He was asked about whether the Excel spreadsheet (prepared for the year) would be subject to change. He said that it would - perhaps, if someone leaves or someone gets caught up in a project, may have to reassign tasks. He said it is now weekly, as opposed to for the year.

Closing Submissions on behalf of the Respondent

Maternity Protection Act 1994 – statute-barred; failure by legislature to amend the statute;

Counsel for the Respondent raised a legal point, by way of oral submission, in relation to the Maternity Protection Act 1994. He submitted that s. 31 of the Maternity Protection Act 1994 has been amended by s. 41 of the Workplace Relations Commission Act 2015 and has retained the provisions of s. 31.

He highlighted that s. 41 (7)(c) of the Workplace Relations Act 2015 simply says that in the case of the dispute relating to the employment under the Maternity Protection Act, the six (6) months is beginning on the date of pregnancy, birth or breastfeeding, and Ms. Hurley went on leave in April 2020. He submitted that it may be a harsh point, but the Oireachtas has not amended it. 

He submitted that time runs from a point of time during the protective leave, the latest point when it could run, in this case, is from the time when the Complainant took maternity leave or when she gave birth. He submitted that the interpretation of that Act is unclear. He submitted that the claim is statute-barred; and that given the harsh wording of that section, it would seem that the six months would run from the point when the employer was notified and it is therefore difficult to say that the Complainant has come within time under that section, based on the evidence before the Adjudication Officer, at the hearing. He submitted that the 2015 Act was the one applicable and no steps had been taken by the legislature to amend that.

In relation to the substantive point, he submitted that the Respondent’s position was that the Complainant was on the management team and that she retained the position as a manager and that, he submitted is re-enforced by the fact that her salary had not changed. He said that s. 27 of the Maternity Protection Act is relied upon and that the operation of s. 27 is based on s. 26. – “the duty on an employer to put in place suitable alternative employment.” He submitted that the previous employment was no longer tenable, that it was not reasonably practicable. He submitted that s. 27 is based on fulfilling the requirements of s. 26 and if s. 26 is not fulfilled, then s.27 is triggered.

He submitted that s. 26 had three requirements:

1. Employment

2. Job she “previously undertook.” He raised the question of what that actually means, and submitted that it goes beyond her actual title, that it goes to “the nature of her work” – he submitted that was a matter for the Adjudication Officer.  

He submitted that it was the Respondent’s position that the Complainant retained the role of a manager and that the company expanded to a much larger operation – he submitted that the nature of the business, and the assistance the Complainant has given to the business helped with this. He said that there were thirty-two duties/tasks outlined and some of the tasks go above and beyond what would be expected of an Office Manager. He said that there were about eighteen (18) prior to Ms. Hurley going on protective leave. He emphasised that Mr. McCoy feels very strongly that it was not simply feasible for the company for the Complainant to do all thirty-two (32) tasks but the management team consisted of a number of people. He emphasised the needs of the business – the shift nature of their work and the requirements that had to be fulfilled according to the nature/requirements of the business.

He submitted that while Mr. Murphy’s excel spreadsheet sets out the tasks for one (1) year, it was subject to change.

He submitted that the “Roles and responsibilities” document submitted by the Complainant was not a list of tasks exclusively done by her, that they may have been within her role but they were not exclusively hers; and that the case being made by the Complainant is that they are exclusively hers.

He said that exclusivity is very important because that could impact on the operation of the business; that if it was deemed that Ms Hurley could only carry out these tasks, that would not work; that was very important from the business’ point of view.

3.       The third requirement is that the Complainant must return under her contract of employment. He submitted that subject to the Adjudication Officer’s view of it, the evidence would certainly show that there was a contract. It would appear that Ms. Hurley did receive a contract of employment.

Turning to s. 27, he submitted that Ms. Hurley was unsatisfied with her role and that a meeting was arranged. He said that there was a factual dispute between the parties as to what occurred at that meeting. March 3rd/4th: There was email correspondence between the parties. He submitted that the perspective that should be taken in relation to that was that the Respondent company attempted to engage with the Complainant; and that Mr. McCoy was agreeable to Ms. Hurley proposing a solution, that if she put forward a role that would meet her needs – in line with the vast experience and skills that she possessed – Mr. McCoy had no difficulty putting her forward for that role/position.

Employment Equality Act 1998 (as amended)

He then addressed the complaint under the Employment Equality Act and said that there were two points in relation to that – her job and the request to work from home.

He cited the relevant sections of the Employment Equality Act 1998 in relation to the gender ground and set out that discrimination involves less favourable treatment of a woman as against another person being a man.

Section 85A of the Employment Equality Act and the underpinning Article 10 of the Framework Equality Directive (2000/78/EC) require that a Complainant establish facts of such significance that raise an inference or presumption of discrimination.

He cited the established test for ascertaining if the burden of proof shifts to the Respondent as per the Labour Court authorities of MitchellV. SouthernHealth Board [2001] ELR 201 and Valpeters V. Melbury Developments [2010] ELR 64

Mitchell v Southern Health Board [2001] E.L.R. 201, the test provides:-

1) It is for the Complainant to prove the primary facts upon which he or she relies in seeking to raise a presumption of discrimination.

2) If the primary facts relied upon are proved, it is for the Court to evaluate those facts and consider if they are of sufficient significance to raise a presumption of unlawful discrimination.

3) If the facts proven are considered of sufficient significance to raise a presumption of discrimination the onus of proving that there was no infringement of the principle of equal treatment passes to the Respondent.

And as per:

Melbury Developments Ltd V. Valpeters [2010] ELR 64, however, the Court stated that:-

“mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.”

Counsel for the Respondent submitted that the Complainant had not established a prima facie case. He submitted that her role had not diminished to that extent when she returned to her employment, that she returned to a manager’s role and did not change her status as a manager.

He submitted, in respect of the family status aspect of the claim, that no evidence of any comparator had been submitted as required under the legislation, and that the Complainant has not established a prima facie case in relation to that. He submitted that on her return from protective leave, management could not work from home, that all management were required to be on site. He further submitted that there was another female member of staff on the management team who was required to work from the office. He submitted that the Complainant’s place of work was her office; that she had worked from home previously (when a need arose); and that requiring her to be on site was not a breach of her contract.

He submitted in terms of relief, that it may be necessary to elect between the Maternity Protection Act and the Employment Equality legislation.

Employment Equality Act complaint

I concur with the Solicitor for the Complainant’s submission that a woman on maternity leave is a particularly protected class of person. The Employment Equality Act is a remedial social statute, and has broad application, in order to give effect to the European Law Directives and European Law jurisprudence, applicable in this area.

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.

Section 6(1) of the Employment Equality Acts 1998 (as amended) 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).....". Section 6(2)(a) of the Acts defines the discriminatory ground of gender as follows - "as between any 2 persons, ... that one is a woman and the other is a man."

The complaint under the gender ground in the present case arises on foot of the Complainant’s pregnancy resulting in her exercising her right to access maternity leave (a portion of which is mandatory), and her attempt to return to her job post-protective leave. The European Court of Justice (ECJ) held in the case of Dekker -v- Stichting Vormingscentrum voor Jong Volwassen (Case C-177/88) that unfavourable treatment as a result of or connected to pregnancy is direct discrimination on the grounds of gender. It later held in Mary Brown V. RentokilInitial UK Ltd (formerly Rentokil Ltd)(Case C-394/96)that the entire period of pregnancy and maternity leave is a protected period during which both the EU Equal Treatment Directive and EU Pregnancy Directive prohibit dismissal on grounds of pregnancy and dismissal of a pregnant employee during that period can only occur in exceptional circumstances unrelated to pregnancy or maternity. While these cases related to appointments and dismissals, the approach adopted in these cases has also been recognised as extending to the terms and conditions of employment by the European Court of Justice in the case of Caisse Nationale d'Assurance Vieillesse des Travailleurs Salariés (CNAVTS) v Evelyne Thibault. CNATVS -v- Evelyne ThibaultCase (C-136/95) wherein it stated: "It must therefore be held that a woman who is accorded unfavourable treatment regarding her working conditions, in that she is deprived of the right to an annual assessment of her performance, and therefore, of the opportunity of qualifying for promotion as a result of absence on account of maternity leave, is discriminated against on the grounds of her pregnancy and her maternity leave. Such conduct constitutes discrimination based directly on grounds of sex within the meaning of the Directives."

I find that the Complainant was discriminated against on the gender ground, on her return from maternity leave.

I find that she adduced fact of sufficient significance as to raise a presumption of unlawful discrimination, such that the burden shifts to the Respondent to ‘prove the contrary’ which it failed to do.

I find that her role was that of Office Manager. The TUPE documents submitted support that finding, as do several other documents emanating from or on behalf of the Respondent company. I also accept the Complainant’s cogent and credible evidence in that regard.  I find the Respondent’s persistent attempts to obfuscate in relation to her title very disconcerting, and clearly undermining of its assertion that it returned her to her role subsequent to her return from maternity leave.

I find that the Respondent company’s written responses to the Solicitor for the Complainant are at odds with the evidence given at hearing – it contradictorily advanced the arguments that the Complainant had never been the Office Manager and that her complaints were “misguided” and also that she remained the Office Manager and there was no alteration to her position.

I find that the Complainant was, in effect, demoted and side-lined, on her return from maternity leave. Even basic provisions, such as an appropriate place for her to sit were not provided. Appropriate work was not provided to her from January 2021 onwards – the Complainant’s flexibility and willingness to take on other work in December 2020 at her employer’s request, when the company was in an ‘all hands on deck’ situation does not count against her, nor does it diminish or undermine the employer’s responsibilities to the employee on her return from protective leave. Additionally, there were a number of remarks passed at the employee which were highly insulting, some of which were gendered in nature;  Her productivity was also incorrectly compared against the role of a person doing a call operator role.

Both the Complainant’s job and her prior reporting line were disappeared while she was on maternity leave. I find that there is a lack of clear organisational structure in place, in the Respondent organisation, which is incapable of being implemented satisfactorily. This resulted in a garbled situation where the Complainant appeared to be both a peer of the Call Centre Manager, Mr. Murphy and was also directed to report to him in relation to some matters. For his part, he was unaware of either her job title or her job specification; but wrote her an email in which he directly threatened her job.

I find the idea that the employee was asked by her employer to define her own role on return from protective leave to be ludicrous, on its face. The idea that the Respondent company thought that it was accommodating the employee by doing so reveals a complete lack of understanding of its duties and obligations to all its employees in relation to clarity around job specification/role and in relation to organogram/organisational reporting structure, but in particular its duties to female employees re-entering the workplace on return from a period of protective leave. I cannot emphasise enough that an employee on protective leave remains an employee of their employer – there is no break in the employment relationship; and any other approach renders the benefit of protective leave pertaining to maternity at nought. Some of the comments passed at the Complainant – including by the owner of the Respondent company – to the effect of that the Complainant had obviously not been in attendance at management meetings while she was on maternity leave, and had not been around when the changes were happening/being implemented reveal the fact that the Respondent company simply does not understand its duties to its female employees, in this regard.

I find that the Complainant’s role was disappeared, that her reporting line was disappeared, and that her job was directly threatened in writing by a person – who insofar as any reporting structure can be discerned – was much more akin to a peer prior to her going on maternity leave. There was no recognition of the requirement on the employer to return her to her prior role, on her return from protective leave, or, if that were not feasible, to provide her with suitable alternative employment. Instead, the employer required the employee to “come up with a job for herself” and the company’s owner emphasised the requirement for any such role to cover her wages.

I find that there is a clear thread of discrimination from the point of her return from protective leave to the point when she went on certified sick leave (on which she remained at the date of the hearing). I find that the Complainant was essentially “edged out”, that no appropriate provisions were put in place by her employer as it is legally required to do in relation to her return from protective leave, either in terms of providing basic supports to the employee herself or in terms of ensuring her seamless return to her prior role in the business and the work assigned to her (or, in the event that that was legitimately not available, suitable alternative work). I find that the Complainant was directly discriminated against on the ground of gender, (in line with the European Court of Justice decision in Dekker V Stichting Vormingscentrum Voor Jonge Volwassened (VJV-Centrum) Plus [1991] IRLR 27 ECJ, on direct sex-based discrimination), on her return from protective leave.

I further find that the Complainant actively engaged with her employer, and clearly raised the matters complained of with the Respondent, affording the Respondent opportunities to address the matter, which it failed to take, which is astonishing. The Respondent’s approach simply has no reality to it. I further accept the Complainant’s contention that having challenged her employer in relation to its disappearance of her job on her return from maternity leave, it proceeded to undermine her further. I note that there was no proper mechanism in place to hear the Complainant’s grievance and that her grievance was not processed adequately or at all. I note that, on foot of correspondence from the Solicitor for the Complainant, identifying legal deficiencies, the Respondent subsequently updated its handbook, and I note that the version of the handbook sent to the Complainant is a different version to the version produced in the Respondent’s documents at the hearing, upon which it sought to rely.

For completeness, I find that no comparator was proffered in relation to family status and that that aspect of the Complainant’s complaint was not made out.

I am required to award a sum of compensation which is “persuasive and dissuasive” and “proportionate” in line with the prevailing jurisprudence.

Maternity Protection Act 1994 – claim statute-barred?

The Maternity Protection Act 1994 was enacted to give effect to European Directive (Council Directive 92/85/EEC), specifically: “AN ACT TO IMPLEMENT COUNCIL DIRECTIVE 92/85/EEC OF 19 OCTOBER 1992 ON THE INTRODUCTION OF MEASURES TO ENCOURAGE IMPROVEMENTS IN THE SAFETY AND HEALTH AT WORK OF PREGNANT WORKERS AND WORKERS WHO HAVE RECENTLY GIVEN BIRTH OR ARE BREASTFEEDING…”

Article 2 of Directive 92/85/EEC, sets out in its definition section, as follows:

“For the purposes of this Directive:

Pregnant worker shall mean a pregnant worker who informs her employer of her condition, in accordance with national legislation and/or national practice.

Worker who has recently given birth shall mean a worker who has recently given birth within the meaning of the national legislation and/or national practice and who informs her employer of her condition, in accordance with that legislation and/or practice.

Worker who is breastfeeding shall mean a worker who is breastfeeding within the meaning of the national legislation and/or national practice and who informs her employer of her condition, in accordance with that legislation and/or practice;”

In the matter of the case filed herein (CA-00044720-001), there is no claim in relation to breastfeeding. The matter pertains to a Worker who was pregnant and who gave birth, and who had recently returned to work post, inter alia, maternity leave - which is protective leave to which she is entitled under the Maternity Protection Act 1994 (as amended). The CJEU stated in Minister for Justice and Equality v Commissioner of An Garda Síochána Case C-378/17 at [38]: “As the Court has repeatedly held, that duty to disapply national legislation that is contrary to EU law is owed not only by national courts, but also by all organs of the State — including administrative authorities — called upon, within the exercise of their respective powers, to apply EU law.” The Court held at [47]: “Furthermore, in so far as the Workplace Relations Commission must be considered to be a ‘court or tribunal’ within the meaning of Article 267, it may refer to the Court, pursuant to that article, questions of interpretation of relevant provisions of EU law and, as it is bound by the judgment in which the Court gives a preliminary ruling, it must forthwith apply that judgment, disapplying, if necessary, of its own motion conflicting provisions of national legislation. The effect of the decision in Minister for Justice and Equality v Commissioner of An Garda Síochána Case C-378/17 is that an Adjudication Officer of the Workplace Relations Commission has a duty to give full effect to EU law, including through the disapplication of national legislation which conflicts with EU law, where required. Alternatively, the question of whether the relevant section conflicts with EU law can be referred to the CJEU pursuant to Article 267 TFEU.

I find that it is necessary to interpret the national legislation in conformity with the Directive, such that the Complainant has access to an effective legal remedy under domestic law, as required by the terms of the Directive. I find that the very earliest point when such a cause of action could have accrued under the Maternity Protection Act 1994 is at the point of the Complainant’s return to work on December 7th , 2020; and I find, on the facts of the instant case, the earliest point at which the Complainant’s cause of action could have accrued is at some point in January 2021 when it became apparent to her that her duties had not been returned to her on return from protective leave. It is also settled national law that limitation periods run from the time when a cause of action accrues. I am therefore disapplying the domestic statute s. 41(7)(c) of the Workplace Relations Act, which sets out at: s. (7) Subject to subsection (8), an adjudication officer shall not entertain a dispute referred to him or her under this section if-

(c)“in the case of a dispute relating to the entitlement of an employee under the Act of 1994, it has been referred to the Director General of after the expiration of the period of six (6) months beginning on the date on which the employer is informed:-

i        that the employee, has recently given birth or is breastfeeding, (emphasis added)

ii      in the case of an employee who is the expectant father of a child, that the expectant mother is pregnant, or

iii    in the case of an employee who is the father of a child that has been born, that the child’s mother has died.

The ECJ in the case of Caisse Nationale d'Assurance Vieillesse des Travailleurs Salariés (CNAVTS) V. Evelyne Thibault Case (C-136/95) addressed the issue of terms and conditions of employment for women with respect to maternity leave, setting out as follows:

“23. Nevertheless, it must be emphasised that the national court has asked the Court of Justice to interpret specific provisions of Community law in circumstances such as those of the case before it. Accordingly, the observations of the French Government regarding Article 3 of the supplement of 13 November 1975 and Article 3bis of the supplement of 15 December 1983 are irrelevant.

24. It must be borne in mind that the directive allows national provisions which guarantee women specific rights on account of pregnancy and maternity, such as maternity leave (see Case C-179/88 Handels- og Kontorfunktionaerernes Forbund [1990] ECR I-3979, paragraph 15).

25. Furthermore, by reserving to Member States the right to retain or introduce provisions which are intended to protect women in connection with `pregnancy and maternity', Article 2(3) of the Directive recognises the legitimacy, in terms of the principle of equal treatment, first, of protecting a woman's biological condition during and after pregnancy and, second, of protecting the special relationship between a woman and her child over the period which follows pregnancy and childbirth (see, in particular, Case 184/83 Hofmann v Barmer Ersatzkasse [1984] ECR 3047, paragraph 25, Case C-421/92 Habermann-Beltermann [1994] ECR I-1657, paragraph 21, and Case C-32/93 Webb v EMO Air Cargo [1994] ECR I-3567, paragraph 20).

26. The conferral of such rights, recognised by the Directive, is intended to ensure implementation of the principle of equal treatment for men and women regarding both access to employment (Article 3(1)) and working conditions (Article 5(1)). Therefore, the exercise of the rights conferred on women under Article 2(3) cannot be the subject of unfavourable treatment regarding their access to employment or their working conditions. In that light, the result pursued by the Directive is substantive, not formal, equality.

27. The right of any employee to have their performance assessed each year and, consequently, to qualify for promotion, forms an integral part of the conditions of their contract of employment within the meaning of Article 5(1) of the Directive.

28. It is therefore in the light of Article 5(1) of the Directive, in conjunction with Article 2(3), that rules such as those at issue in this case must be examined to determine whether they guarantee men and women the same conditions without discrimination on grounds of sex.

29. The principle of non-discrimination requires that a woman who continues to be bound to her employer by her contract of employment during maternity leave should not be deprived of the benefit of working conditions which apply to both men and women and are the result of that employment relationship. In circumstances such as those of this case, to deny a female employee the right to have her performance assessed annually would discriminate against her merely in her capacity as a worker because, if she had not been pregnant and had not taken the maternity leave to which she was entitled, she would have been assessed for the year in question and could therefore have qualified for promotion.

30. It is true, as the United Kingdom Government was right to point out, that the Court has recognised that the Member States have a discretion as to the social measures they adopt in order to guarantee, within the framework laid down by the directive, protection of women in connection with pregnancy and maternity and as to the nature of the protection measures and the detailed arrangements for their implementation (see inter alia Hofmann, cited above, paragraph 27).

31. Nevertheless, such discretion, which must be exercised within the bounds of the Directive, cannot serve as a basis for unfavourable treatment of a woman regarding her working conditions.

32. It must therefore be held that a woman who is accorded unfavourable treatment regarding her working conditions, in that she is deprived of the right to an annual assessment of her performance and, therefore, of the opportunity of qualifying for promotion as a result of absence on account of maternity leave, is discriminated against on grounds of her pregnancy and her maternity leave. Such conduct constitutes discrimination based directly on grounds of sex within the meaning of the Directive.

33. The answer to the question must therefore be that Articles 2(3) and 5(1) of the Directive preclude national rules which deprive a woman of the right to an assessment of her performance and, consequently, to the possibility of qualifying for promotion because she was absent from the undertaking on account of maternity leave.”

It must be emphasised that there is no break in the employment relationship caused by the Complainant exercising her right to protective (maternity) leave. The employee remains an employee of the employer.

Paragraphs 25 and 26 of the judgment above, setting out the principle of “substantive, not formal, equality”, and specifying that the Directive’s intent in allowing and/or requiring Member States to confer sex-based rights on women in relation to “pregnancy and maternity”, as well as health and safety protections, is “intended to ensure implementation of the principle of equal treatment for men and women regarding both access to employment (Article 3(1)) and working conditions (Article 5(1))” (emphasis added) are particularly relevant to this case; as is the naturally-flowing finding, in the judgment, that the exercise of those rights therefore cannot be the subject of unfavourable treatment regarding access to employment or working conditions. Article 12of Directive 92/85/EEC sets out, as follows, under the heading of “Defence of rights”: “Member States shall introduce into their national legal systems such measures as are necessary to enable all workers who should themselves wronged by failure to comply with the obligations arising from this Directive to pursue their claims by judicial process (and/or, in accordance with national laws and/or practices) by recourse to other competent authorities.”

I, therefore, find that it is necessary to read the provision of s.41(7)(c)(i) of the Workplace Relations Act 2015 (which is the enabling statute which allows for the filing of a claim in respect of the Maternity Protection Act 1994, for adjudication by the Workplace Relations Commission which has the status of “a tribunal or a court” under Article 267 TFEU) in conformity with the Directive, with regard to the time-limit to file a claim. Otherwise, no effective domestic remedy would have been provided by the Irish State, under the Maternity Protection Act 1994, to vindicate the rights of new mothers in relation to “maternity, pregnancy and breastfeeding as pertaining to improved health and safety and the right to work”, as required by Council Directive 92/85/EEC, where the relevant fact-pattern involved a claim which accrued at or after the Complainant’s attempt to exercise her right to return to her job following a period of, inter alia, maternity leave (protective leave provided for under the Maternity Protection Act 1994 on foot of Directive 92/85/EEC).

It is necessary in order to vindicate her right to access to work/her right to earn a livelihood, and her right to the maintenance of her working conditions, in the context of the Directive’s intent of “substantive equality” as between men and women, when addressing the matter of “maternity, pregnancy and breastfeeding.” The Complainant cannot be left without an effective domestic legal remedy in relation to the enforcement of the exercise of her right to return to her job (right to access to work/right to earn a livelihood) following a period of protective leave, a portion of which is State-mandated and the balance of which is a matter of national practice, both of which are provided for in domestic legislation in line with the requirements of the terms of, inter alia, the Directive 92/85/EEC. I find that the requirement to provide an effective domestic remedy is clearly set out therein, as is the intent of the Directive, and European Law jurisprudence in this area, which is to protect women from dismissal or discrimination on foot of pregnancy, maternity and/or breastfeeding and which is produced on foot of the requirement for “substantive”, rather than formal, equality. The Workplace Relations Commission is the body with jurisdiction to hear a case under the Maternity Protection Act 1994, the Workplace Relations Act 2015 being the enabling legislation.

In this case, the Complainant filed her claim on 22/06/2021, which I find to be within six months of the date of accrual of her claim (which, at its earliest, ran from some time in January 2021). I find that the claim is therefore in time and that I have the jurisdiction to hear it.

Written, post-hearing request to anonymise the names of the parties in the published decision

Subsequent to the hearing, a written application to have the names of the parties anonymised in the published decision was made by the Solicitor for the Respondent. The Solicitor for the Complainant objected in writing, highlighting that no such application was made on either hearing date, and it was submitted that no “special circumstances” applied in this case. The hearing had already been fully held in public, in accordance with the principle of “open justice”, and in line with the requirements set out in Zalewski V. Adjudication Officer and WRC, Ireland and the Attorney General [2021] IESC 24. Having considered the application, and the response, I find that there is no basis for a departure from the default position of naming the parties to the proceedings in the published decision.

CA-00044720-001 - I find that this complaint is in time. I find that this complaint is well-founded. I am disapplying s. 41(7)(c)(i) of the Workplace Relations Act 2015 and reading the domestic legislation in conformity with the terms of the DIRECTIVE 92/85/EEC in order to vindicate the rights of and give effective domestic legal remedy to the Complainant “as a woman who had recently given birth” in relation to “maternity, pregnancy and breastfeeding as pertaining to improved health and safety and the right to work”, as required by the terms of the Directive, in circumstances where the complaint she filed pertains to her right to return to work following, inter alia, a period of protective leave. I am satisfied that the Complainant was obstructed in returning to work, by her employer, following a period of maternity leave and that no proper provision was made with respect to her return to the role she held immediately prior to going on maternity leave and/or the provision of suitable, alternative work, as is the legal requirement, under the Directive. I find that her cause of action accrues subsequent to her return to work and that I have jurisdiction to hear it.

There is no statutory requirement for the Complainant to elect between the Maternity Protection Act 1994 and the Employment Equality Act 1998. However, in line with the common law rule against double recovery, I have made a monetary award under CA-00044720-002 (the complaint under the Employment Equality Act) only, as both claims involve discrimination on the same set of facts.

CA-00044720-002 - I find that this complaint is well-founded. Having regard to all the evidence, I am satisfied that the Complainant's evidence is credible and accordingly, on the balance of probabilities, I am satisfied that she has successfully raised an inference of direct discrimination (in line with Dekker) on the gender ground. Therefore, the burden of proof shifts to the Respondent to ‘prove the contrary’, which I find it failed to do. The Labour Court in A Company and A Worker, ED/01/1 set out that: "Once an employee has shown that she has been dismissed or discriminated against, under the Burden of Proof Directive, the onus switches to the employer to show that such dismissal or discrimination was on exceptional grounds not associated with her pregnancy and such grounds, in the case of dismissal, as a matter of law and in the case of discrimination as a matter of good practice should be set out in writing.”

I find that the complaint in relation to discrimination on the basis of family status was not made out – no comparator was identified.

Section 82 of the Employment Equality Acts provides that I can make an order for the effects of the discrimination. The maximum jurisdiction in accordance with the provisions of Section 82 of the Acts is 104 weeks' remuneration. In considering the redress in this case, I have to consider that any award for compensation should be proportionate, effective and dissuasive. In accordance with Section 82 of the Employment Equality Acts, I hereby direct the Respondent to pay the Complainant the sum of €31,000 (thirty-one thousand euros) for the effects of the act of discrimination, within 42 days of the date of this decision. (This amount equates to approximately 12 months’ salary). This figure represents compensation for infringement of her rights under equality legislation in relation to discrimination and does not encompass any element pertaining to remuneration.

Sex based discrimination; Maternity Protection Act disapplication; EU Directive;