Complainant

Respondent

Parties

Fionnuala  Bonner

Donegal County Council

Complainant

Respondent

Parties

Fionnuala Bonner

Donegal County Council

Representatives

 Boyce Kelly Solicitors/ Patricia McCallum BL

Keith Irvine Local Government Management Agency (LGMA)

Act

Complaint Reference No.

Date of Receipt

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

CA-00032326-001

19/11/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00032328-002

19/11/2019

The factual background of this case must be read in conjunction with the facts as detailed in Adj-00022541 relating to a claim for breach of the Protection of Employees (Fixed-Term Work) Act.

The Complainant was employed by the Council in the initial capacity of Health, Safety, Quality and Environment Supervisor (HSQE) on a number of successive Fixed Term Contracts.

The Complainant was employed by the Respondent from the 7th of April to 31st of May 2019. Her periods of employment and role are as follows:

1.           HSQE Supervisor from the 7th of April 2015 to 31st December 2015.

2.           HSQE Supervisor from the 8th of February 2016 to 7th December 2016.

3.           Water Pro Officer from the 30th of January 2017 to 29th of January 2019.

4.           Water Pro Officer from 31st January to 31st May 2019.

The time period between the ending of contract 1 and the commencement of contract 2 was approximately 5 weeks.

The time period between the ending of contract 2 and the commencement of contract 3 was approximately 7 weeks.

The time period between contract 3 and 4 there was no gap.

The Complainant stated that the roles and duties that she carried out from the commencement of her employment continue to this day. In fact, at the time of her employment ending she was engaged in a wide range of tasks and duties which were not related to external funding. The contract given to her on the 31st of January 2019 provided no objective reason for the temporary contract, other than it was temporary. The periods of lay-off do not amount to a cessation of employment and the contract has continued for 4 years.

The Complainant alleged that on or about the 17th of January 2019 her manager offered her the position of executive technician once her current fixed term contract ended on the 29th of January 2019. At all times the Complainant believed that her employment was secure nor was she informed that the position was contingent on funding and would be only for a fixed period.

In February 2019 the Complainant informed her employer that she was pregnant.

On or about April 2019 the Complainant stated that for the first time she was informed that her employment would cease permanently on the 31st of May 2019 at the end of her contract. Thereafter she was instructed to train other work colleagues to carry out some of her duties including on-site inspection.

The Complainant lodged a complaint with the WRC in July 2019 in respect of her claim for a Contract of Indefinite Duration. On or about the 31st of July 2019 the Complainant stated that she was requested to refrain from making a complaint. The Complainant stated that she was informed that a permanent role was to be created and if she withdrew her complaint, she would be offered that permanent role. The role was advertised, and the Complainant competed for the role but was not offered the role.

The Complainant was penalised by the Respondent within the meaning of section 13(d) of the 2003 Act. In particular the Complainant was not offered a contract of indefinite duration or renewal of her contract either wholly or partly because the Respondent wished to avoid awarding her a contract of indefinite duration.

In the alternative the Complainant stated that she was offered a permanent role on or about the 17th of July 2019. The Complainant was led to believe that her role was secure as she was shown a calendar that was sent to the Environmental Protection Agency (EPA) that detailed sampling schedules for all landfills in Donegal up until 2020

The Complainant notified her employer that she was pregnant in February 2019. After that the attitude of the Respondent changed and reference to her role continuing ceased. The Complainant was no longer given work and instead was asked to train other staff and that her contract would not be renewed.

The Complainant was recruited in 2015 in the temporary position of HSQE Supervisor to support the Water and Environment Directorate for the purpose of water safety and environmental monitoring during the summer bathing season 2015 and her contract was extended to the 31st of December 2015.

The Complainant was subsequently recruited to the same position from the 8th of February to the 7th of December 2016.

The objective reason in the contract was: “the post is required for the purpose of Water Safety during the summer bathing season 2016”.

In an unrelated development to the previous fixed term contracts the Council advertised, through competition, the temporary post of Water Pro Project Officer. The Complainant applied for the role and was successful. This role was dependent on standalone funding under an EU transnational Interreg Funding programme.

This contract began on the 30th of January 2017 until 29th of January 2019. The objective justification was a temporary role arising from the fact that the funding was temporary:

“This is a Specific Purpose Contract of Employment. The Water Pro Project is an EU funded project under the Northern Periphery and Artic Programme. The project officer post if for a two-year fixed term to run concurrently with the funding.”

On the 15th of January 2019 the Respondent extended the contract by a further 4 months until the 31st of May 2019 to complete the project. This was on the same terms as the Contract of Employment and signed and accepted by the claimant as per the letter dated 15th of January 2019.

The Respondent is satisfied that there were precise and concrete circumstances for offering the claimant a fixed term contract. There was no fixed and permanent need for the work the claimant was undertaking. The fixed term was for a partnered project funded for a two-year period. The Respondent it satisfied that the need was temporary and transient. The Council in this regard was mindful of the requirement that the concept of objective ground must be understood to refer to a precise and concrete circumstance characterising a given activity, which are capable in this particular context of justifying the use of successive fixed term employment contracts (CJEU case C-212/04 Adeneler and Ors v Ellinkos Organismos Galaktos IRLR 716).

The decision of the High Court in Russell v Mount Temple Comprehensive School IEHC 533 is authority for the proposition that the existence of objective grounds justifying the renewal of a fixed term contract is to be judged at the commencement of the impugned contract.

The Complainant’s employment ended by reason of the term specified in her contract that the role was temporary as it was contingent on funding that was temporary.

The Respondent stated that the Complainant must establish a prima facie case of discrimination. In this case the equality claim relates to the expiry of a Fixed Term Contract where the Complainant had specifically agreed to the temporary contract with an end date of the 31st of May 2019 which she signed on the 25th of January 2023. It cannot be argued that notice of the contract ending prior to the Complainant informing the Respondent in February 2019 that she was pregnant was discriminatory. The notification of termination was given in January 2019 and therefore the Complainant cannot maintain that she was subject to specific discriminatory treatment and that treatment was less favourable than someone who was not covered by the discriminatory ground.

The Council is not aware of how or when the Complainant was discriminated against. Also, the Complainant has failed to identify a comparator who she was treated less favourably treated to.

At no time was the Complainant offered a permanent role by her manager as such roles can only be filled through Public Competition.

The Complainant signed a document on the 15th of January 2019 that included notice of the contract ending with reference to the first contract and that objective grounds for ending that first contract related to temporary funding.

The factual background of this case must be read in conjunction with the facts as detailed in Adj-00022541 relating to a claim for breach of the Protection of Employees (Fixed-Term Work) Act 2003.

That first complaint was referred to the Commission on the 8th of July 2019; the above two complaints were subsequently made on the 19th of November 2019.

To a large extent the facts that underpin each separate complaint are similar.

There is also an interdependency between the complaints and that the reasons for the non-renewal can be pursued under different head of legislation; therefore, if the wrong is affirmed it is in essence grounded on the same facts.

As set out in the first decision Adj-00022541 under section 14 of the Protection of Employees (Fixed Term Work) Act 2003, I have determined the following:

The Complaint is well founded.

I determine that the following contracts continued successively, and the Complainant was engaged in continuous employment:

1.           HSQE Supervisor from the 7th of April 2015 to 31st December 2015.

2.           HSQE Supervisor from the 8th of February 2016 to 7th December 2016.

3.           Water Pro Officer from the 30th of January 2017 to 29th of January 2019.

4.           Water Pro Officer from 31st January to 31st May 2019.

The Complainant has made out a strong case that a significant part of her role continued and while funding from the EU was received for a designated project her role encompassed more than that. I have determined that the Complainant was employed by his or her employer or associated employer on two or more continuous fixed-term contracts and the date of the first such contract is after the date on which this Act is passed, the aggregate duration of such contracts exceeded 4 years. 

As the renewal of the contract dated the 15th of January 2019 extended the Fixed Term; where the aggregate duration of such contracts as referenced exceed 4 years, and did not provide objective grounds to do so, I find that the fixed term of the contract has no effect and deem the contract to be a contract of indefinite duration.

At the time the Complainant notified the Respondent on or about February 2019 that she was pregnant she was permanent as the renewal was not lawful, and what flows from that is a requirement to justify why she was dismissed.

I note in Bolger, Bruton, Kimber; Employment Equality Law 2nd Ed. 2022:

The need for a comparator

2-181

In general, a complainant must prove less favourable treatment as compared with another person in a similar position to the complainant. Therefore, without a comparator, the claim will fail, and the choice of comparator is of significant importance to the success of any claim. However, this does not apply to allegations of pregnancy-related discriminatory treatment where the law in general accepts a hypothetical non-pregnant comparator.

2-182

Section 6(2A) now provides, for the avoidance of any doubt, that less favourable treatment during pregnancy or maternity leave is deemed to constitute discrimination on the gender ground. Similarly, in the context of harassment and victimisation, the law does not require the need for a comparator in order for a complainant to succeed, as the focus is on the detrimental treatment which creates a cause of action without the need to show that a comparator was not harassed or victimized.

In Regan Employment Law 2nd Ed chapter 17, the use of a hypothetical comparator is referenced:

‘Less favourable treatment’ is more commonly known as ‘direct discrimination’ although that particular phrase is not used in the Employment Equality Act. In general, a complainant must prove less favourable treatment as compared with another person in a similar position to the complainant. If a complainant is unable to demonstrate that the chosen comparator/s were treated less favourably, if for example all employees were treated equally poorly or unlawfully, the claim of discrimination will fail. The wording of s 6 ‘would be treated’ allows for the use of hypothetical comparators in appropriate circumstances of alleged discriminatory treatment, other than in relation to equal pay where an actual comparator is required.’

In Mitchell v Southern Health Board, DEEO11 the Labour Court held that a ‘claimant must prove, on the balance of probabilities, the primary facts on which to rely in seeking to raise a presumption of unlawful discrimination.’  And in McCarthy v Cork City Council EDA0821 ‘that at the initial stage the complainant is merely seeking to establish a prima facie case. Hence it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.’

I note that in Murdoch and Hunt 2021 Edition Bloomsbury Prima Facie is defined as:

[Of first appearance]. On the face of it; a first impression. A prima facie case is one in which there is sufficient evidence in support of a party’s charge or allegation to call for an answer from his opponent. If a prima facie case has not been made out, the opponent may, without calling any evidence himself, submit that there is no case to answer, whereupon the case may be dismissed.

The principle in discrimination litigation is that once a claimant establishes a prima facie case of discrimination the onus shifts to the respondent, who must prove that no discrimination has occurred.

And the Court of Appeal England and Wales in Igen v Wong EWCA/Civ/2005 stated that the claimant has to normally‘prove on the balance of probabilities facts from which the tribunal could conclude, [this does not mean must prove on the balance of probabilities] in the absence of an adequate explanation, that the employer has committed an act of discrimination against the claimant.’

I note that in Bolger, Bruton and Kimber, Employment Equality Law 2nd Ed. 2022 the following:

2-211

The case law on burden of proof in cases of alleged pregnancy dismissal has developed in a singular manner due to the particular provisions of the Equal Treatment and Pregnancy Directives. It is now well established that the existence of the pregnancy itself is sufficient to shift the burden of proof to the employer to prove that a dismissal of a pregnant employee was not on grounds of the pregnancy.378 In other words, the rules of burden of proof have been moulded in a manner to take specific account of the jurisprudence on pregnancy.

The facts of this case indicate that the only time when the Complainant’s contract was not extended was when she informed her employer that she was pregnant. I must conclude that the Complainant has made out a prima facie case based on these facts and the relevant jurisprudence that in cases of alleged pregnancy dismissal the existence of the pregnancy itself is sufficient to shift the burden.

Has the Respondent rebutted the presumption of discrimination established by the Complainant in this case? The Respondent relies on the fact that notice of the contract ending is sufficient to rebut the inference as that notification was given prior to being informed that the Complainant was pregnant. However, every contract up to February 2019 when the Complainant informed her employer about her pregnancy, was renewed or she was re-employed even when those previous contracts had a termination date.

The factual matrix shows that the Complainants duties did not end when her role ended; rather they were reassigned and in fact soon after her employment ending a new permanent role was created. The Respondent has not rebutted the presumption of discrimination and therefore I must determine that the Complainant was discriminated against on the ground of gender.

There are 3 Complaints made against the Respondent on the same facts:

1.       CA-00029541 -my employer failed to offer a written statement setting out the objective grounds justifying the renewal of a fixed term contract and the failure to offer a contract of indefinite duration lodged on the 8th of July 2019 made under the under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

2.       CA-00032326-Discrimination under section 77 of the Employment Equality Act, 1998

3.       CA-00032328-Penlisation under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003.

I have determined that the complaint CA-00029541 my employer failed to offer a written statement setting out the objective grounds justifying the renewal of a fixed term contract and the failure to offer a contract of indefinite duration is well founded and CA-00032326 that the complainant was discriminated against on the ground of gender.

The 3rd complaint CA-00032328 relating to penalisation and that the Complainant was penalised by the Respondent within the meaning of section 13(d) of the 2003 Act is also well founded.

Penalisation at section 13 is defined as:

Prohibition of penalisation of employee by employer.

13.—(1) An employer shall not penalise an employee—

(a) for invoking any right of the employee to be treated, in respect of the employee's conditions of employment, in the manner provided for by this Part,

(b) for having in good faith opposed by lawful means an act which is unlawful under this Act,

(c) for giving evidence in any proceeding under this Act or for giving notice of his or her intention to do so or to do any other thing referred to in paragraph (a) or (b), or

(d) by dismissing the employee from his or her employment if the dismissal is wholly or partly for or connected with the purpose of the avoidance of a fixed-term contract being deemed to be a contract of indefinite duration under section 9(3).

It was also stated by the Complainant that after her employment had ended, her manager stated that she would be appointed to a permanent role to be advertised, if she withdrew her complaints lodged with the WRC. Based on the conflicting evidence and the fact that the role was advertised, I have not found that the allegation that the manager made such representations can be established.

 While I have found that the Complainant was entitled to a contract of indefinite duration that was based on the fact of successive fixed contracts that exceed 4 years and the last renewal was not objectively justified.

As I have concluded that the Complainant was discriminated against on the ground of Gender it could also logically follow that also equates to penalisation under 13(d); however, I have determined that redress should only be made concerning the discriminatory dismissal as to do otherwise would amount to double compensation on the same facts.

 It is alleged that the Complainant was not offered a contract of indefinite duration or renewal of her contract either wholly or partly because the Respondent wished to avoid awarding her a contract of indefinite duration; however, I have concluded based on the evidence and burden of proof as set out in the Employment Equality Act 1998 that arose based on a pregnancy related dismissal.

As stated by the Respondent the Complainant based on the same facts should not be awarded double compensation; this is like the approach adopted by the Labour Court in the decision of A School v A Worker EDA 122 where the Labour Court held that an employee cannot “rely on the same facts to obtain redress under more than one head of liability.”

I note in Regan Employment Law 2nd ed the following:

[28.80]

Section 101(4A) of the Employment Equality Act 1998 133 requires a person, who has referred a complaint relating to dismissal under both the Unfair Dismissals Act 1977 and the 1998 Act, to elect between the two within 42 days of so being notified by the Commission. 134 If he or she fails to elect by this date, the discriminatory dismissal complaint will be deemed to have been withdrawn.

Section 101A of the Employment Equality Act 1998 135 provides that, where the conduct of the employer constitutes both a contravention of Part III or IV of the 1998 Act and a contravention of either the Protection of Employees (Part-Time Work) Act 2001 or the Protection of Employees (Fixed-Term Work) Act 2003, relief may not be granted to the employee concerned in respect of the conduct both under the 1998 Act and either of the 2001 or 2003 Acts. Similarly, s 18(2) of the 2003 Act provides that an individual, who is both a fixed-term and a part-time employee, may obtain relief arising from the same circumstances under either, but not both, the 2001 and 2003 Acts. The Labour Court, however, has ruled that, where a claim under the 1977 or 1998 Act has been dismissed, a claimant is not estopped by s 18 from pursuing a claim under the 2003 Act. 136

The Employment Equality Act 1998 provides for the following redress:

4) The maximum amount which may be ordered by the Director General of the Workplace Relations Commission by way of compensation under subsection (1)(c) or (1)(f) shall be—

(a) in any case where the complainant was in receipt of remuneration at the date of the reference of the case, or if it was earlier, the date of dismissal, an amount equal to the greatest of—

(i) 104 times the amount of that remuneration, determined on a weekly basis,

(ii) 104 times the amount, determined on a weekly basis, which the complainant would have received at that date but for the act of discrimination or victimisation concerned, or

(iii) €40,000,

The Complainant was in receipt of €1568.57 gross pay per fortnight.

Allowing for the passage of time and having regard to the submissions made on behalf of the Complainant concerning redress and the level of stress and huge uncertainty created for her over such a protracted period, I order the Respondent to pay the Complainant an award of compensation of €45,000 for the effects of discrimination arising from an infringement of her statutory rights based on a finding of discriminatory dismissal.

There are 3 Complaints made against the Respondent on the same facts:

1.           CA-00029541 -my employer failed to offer a written statement setting out the objective grounds justifying the renewal of a fixed term contract and the failure to offer a contract of indefinite duration lodged on the 8th of July 2019 made under the under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

2.           CA-00032326-Discrimination under section 77 of the Employment Equality Act, 1998

3.           CA-00032328-Penlisation under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003.

I have determined that the complaint CA-00029541 my employer failed to offer a written statement setting out the objective grounds justifying the renewal of a fixed term contract and the failure to offer a contract of indefinite duration is well founded and CA-00032326 that the complainant was discriminated against on the ground of gender.

The 3rd complaint CA-00032328 relating to penalisation and that the Complainant was penalised by the Respondent within the meaning of section 13(d) of the 2003 Act is also well founded.

Penalisation at section 13 is defined as:

Prohibition of penalisation of employee by employer.

13.—(1) An employer shall not penalise an employee—

(a) for invoking any right of the employee to be treated, in respect of the employee's conditions of employment, in the manner provided for by this Part,

(b) for having in good faith opposed by lawful means an act which is unlawful under this Act,

(c) for giving evidence in any proceeding under this Act or for giving notice of his or her intention to do so or to do any other thing referred to in paragraph (a) or (b), or

(d) by dismissing the employee from his or her employment if the dismissal is wholly or partly for or connected with the purpose of the avoidance of a fixed-term contract being deemed to be a contract of indefinite duration under section 9(3).

 While I have found that the Complainant was entitled to a contract of indefinite duration that was based on the fact of successive fixed contracts that exceed 4 years and the last renewal was not objectively justified, an award of compensation is only made relating to CA-00032326-Discrimination under section 77 of the Employment Equality Act, 1998.

 I make no award for penalisation as the facts of that claim overlap with the other claims and I have determined that to do so would amount to double compensation; while several actions have been pursued, on the factual matrix of this case, I make a finding for each claim and only make an award of compensation relating to the  alleged discriminatory dismissal for the reasons detailed in the decision. This is consistent with the statutory provisions in the relevant Acts as referenced.

As I have concluded that the Complainant was discriminated against on the ground of Gender it could also logically follow that also equates to penalisation under 13(d); however, I have determined that redress should only be made concerning the discriminatory dismissal.

 It is alleged that the Complainant was not offered a contract of indefinite duration or renewal of her contract either wholly or partly because the Respondent wished to avoid awarding her a contract of indefinite duration; I have concluded based on the evidence and burden of proof as set out in the Employment Equality Act 1998 that arose based on a pregnancy related dismissal.

As stated by the Respondent the Complainant based on the same facts should not be awarded double compensation.

The Employment Equality Act 1998 provides for the following redress:

4) The maximum amount which may be ordered by the Director General of the Workplace Relations Commission] by way of compensation under subsection (1)(c) or (1)(f) shall be—

(a) in any case where the complainant was in receipt of remuneration at the date of the reference of the case, or if it was earlier, the date of dismissal, an amount equal to the greatest of—

(i) 104 times the amount of that remuneration, determined on a weekly basis,

(ii) 104 times the amount, determined on a weekly basis, which the complainant would have received at that date but for the act of discrimination or victimisation concerned, or

(iii) €40,000,

The Complainant was in receipt of €1568.57 gross pay per fortnight.

Allowing for the passage of time and having regard to the representations made by the parties, I order the Respondent to pay the Complainant an award of compensation of €45,000 for the effects of discrimination arising from an infringement of her statutory rights based on a finding of discriminatory dismissal. I determine that the Complainant was discriminated against on the ground of Gender. I determine that this award to be proportionate, effective and dissuasive.

Discriminatory Dismissal