Complainant

Respondent

Parties

Aisling  Walsh

Securitas Security Services (Ireland) Limited

Complainant

Respondent

Anonymised Parties

Representatives

Frank Drumm B.L., instructed by Anthony Collier of Collier Law Solicitors

Mark Comerford of IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00062229-001

14/03/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00062229-002

14/03/2024

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

CA-00062229-003

14/03/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00062229-005

14/03/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00062229-006

14/03/2024

The complainant made these complaints when she was dismissed when she returned from maternity leave. The respondent says the dismissal was a redundancy.

Summary of Respondent’s Case:

The respondent submits the complainant commenced employment with them in the role of People and Communications Partner (PCP) located on their client’s site on 10 October 2022. She commenced maternity leave on 16 January 2023.

Emails were exchanged between the complainant and the then HR Manager (Ms Michelle Collins) about Ms Walsh’s request for additional maternity leave and annual leave before her confirmed return to work date of 1 November 2023.

On 16 October 2023 the complainant met the respondent while she was on extended maternity leave and she was advised that the role she had carried out on the client’s site had ceased and alternative roles would be sent to her to explore upon her return.

On 6 November 2023 the respondent issued the complainant with written notice that the role in the client’s site has ceased, in accordance with the client’s request, and her position was put at risk over a 30-day consultation period for possible redundancy. The complainant was also advised that she was being placed on ‘garden’ leave while consultations with her were held. Alternative roles were discussed at a meeting on 24 November, and correspondence followed this meeting between 24 November 2023 and 4 January 2024. During this period, on 29 December 2023, the respondent issued a letter to the complainant advising that the 30-day consultation period had ended. She was also advised the period of ‘garden’ leave had ceased.

The respondent had a meeting with the complainant on 4 January 2024. The complainant declined all roles offered, then requested more time to consider the role of HR Administrator. She was asked to respond by 9 January 2024. On 15 January 2024 the respondent wrote to the complainant saying that as they had not had any communication from her regarding the HR Administrator role and advised a further meeting was scheduled for 17 January. A meeting was held on 23 January.

On 24 January 2024 the respondent sent a letter to the complainant, as a follow up to the meeting on 23 January, and advised that as she had not accepted any of the alternative roles they have no alternative other than to terminate her contract of employment and issue her with notice of same.

The complainant appealed the decision to terminate her employment. An appeal meeting took place on 13 February 2024 and the termination was upheld.

The complainant was paid her full salary at the level she was paid before going on maternity leave until her employment was terminated.

Summary of Complainant’s Case: The complainant submits she commenced maternity leave in January 2023. She was due to return from her period of extended protective leave on 1 November 2023.

On 26 September 2023 she received an email from the then HR Manager requesting a “catch up” before she was due to return to work. A meeting took place on 16 October when she was told that her role with the client was gone. The HR Manager said she did not want to contact her while she was on maternity leave but decided to do so in case the complainant was looking for childcare. The complainant was made aware of 2 roles available in the respondent’s HQ; one was a permanent role at €35k and the other was a nine month contract at €41/42k. It was agreed there was no point in the complainant coming into work on 1 November.

The complainant got an email on 19 October 2023 attaching job descriptions for the roles discussed. She was told she would have to compete for the positions. The complainant replied that both were at a much lower salary and one was only a nine-month contract. The complainant’s resignation was requested on 20 October.

On 6 November the complainant was formally notified her position was at risk of redundancy and she was invited to a meeting which took place on 24 November 2023. The complainant was told her role was no longer available. She was told of 2 new roles within the HR Department but they both needed CIPD qualification and have been offered out to the whole company. Furthermore, she was told that there did not appear to be any other suitable roles.

She was made aware of two roles that were the subject of an internal competition. Whilst one role was similar to the duties she had been undertaking, the salaries for both were substantially lower than her previous role.

On 29 December 2023 the complainant was informed the consultation period was over and the respondent wished to discuss her current role with them. This was done at a meeting on 4 January 2024 when the respondent outlined that her role had ceased. The complainant clarified she would be happy to return to employment on the same terms and conditions that she had been on prior to going on maternity leave, including a salary of €55,000. A role in another client was outlined but this was at a salary of €15,00 less than her previous salary. No other roles were available.

There was a fourth meeting on 23 January 2024 when the complainant again outlined her willingness to take a position on the same terms and conditions she was on prior to going on protected leave. The complainant’s employment was terminated by letter dated 24 January 2024.

The complainant appealed the termination of her employment but the termination was affirmed.

Findings and Conclusions: the issue for decision by me is whether or not the complainant was unfairly dismissed by the respondent company, who say the dismissal was on the grounds of redundancy.

Section 6 of the Unfair Dismissal Act, 1977 provides:

“6. – (1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

... (c ) the redundancy of the employee”

Redundancy for the purposes of the 1977 Act is defined with reference to section 7 of the Redundancy Payments Act, 1967;

“7(2) For the purposes of subsection (1), an employee who is dismissed shall be taken to be dismissed by reason of redundancy if for one or more reasons not related to the employee concerned the dismissal is attributable wholly or mainly to -

(a)    the fact that his employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employed by him, or has ceased or intends to cease, to carry on that business in the place where the employee was so employed, or

(b)    the fact that the requirements of that business for employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish, or

(c)     the fact that his employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee had been employed (or had been doing before his dismissal) to be done by other employees or otherwise, or

(d)    the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done in a different manner for which the employee is not sufficiently qualified or trained, or

(e)    the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained”

 In the case of JVC Europe Ltd v Panisi [2011] IEHC 279, Charleton J stated;

“In all cases of dismissal, whether by reason of redundancy or for substantial grounds justifying dismissal, the burden of proof rests on the employer to demonstrate that the termination of employment came within a lawful reason. In cases of misconduct, a fair procedure must be followed whereby an employee is given an entitlement to explain what otherwise might amount to a finding of real seriousness against his or her character. In an unfair dismissal claim, where the answer is asserted to be redundancy, the employer bears the burden of establishing redundancy and of showing which kind of redundancy is apposite. Without that requirement, vagueness would replace the precision necessary to ensure the upholding of employee rights. Redundancy is impersonal. Instead, it must result from, as section 7(2) of the Redundancy Payments Act 1967, as amended, provides, “reasons not related to the employee concerned”. Redundancy, cannot, therefore be used as a cloak for the weeding out of those employees who are regarded as less competent than others or who appear to have health or age-related issues. If that is the reason for letting an employee go, then it is not a redundancy, but a dismissal.”   

The complainant was employed by the respondent in a client’s workplace and her contract stated her “position is specific to the (client) contract only and subject to continuous client approval”. Shortly before she was due to return to work at the end of her maternity leave the client decided they no longer wanted to pay for a number of positions and withdrew their approval for the complainant’s role. This meant the role did not exist and the respondent terminated the contract of the person who had been employed to provide cover for the respondent’s maternity leave.

Given this situation the respondent was in contact with and had a meeting with the complainant before she returned from extended maternity leave. The complainant was advised her that her role had ceased and alternative roles would be explored when she returned to work.

The complainant was kept on her full salary after she returned to work on 1 November 2023. As her role was gone the respondent placed the complainant on ‘garden’ leave, whilst a consultation period took place. A number of roles were put forward by the respondent. For two of them the complainant did not have the required qualification. Two others were at a considerably lower salary than she had been earning. Also, the position with the highest salary, albeit more than €10,000 below what she was earning, was only for an initial nine month contact. Ms Walsh decided she did not want any of these roles. The respondent decided they had no option other than to terminate her contract by reason of redundancy and her final day of service was 15 February 2024.

It is clear that an employer cannot dismiss an employee while on maternity leave. That did not happen in this case. The respondent did contact the complainant whilst still on maternity leave to say her role no longer existed and alternatives would be discussed when she returned. They explained they did this because they said they were aware of possible childcare issues for the complainant. The complainant did return to employment in order that a consultation could take place but no alternative roles were acceptable to the complainant.

By letter dated 6 November the respondent put the complainant on notice that her position was at risk of redundancy and there would be a 30-day consultation period. In the same letter the complainant was placed on ‘garden leave’ when she was due to return to work on 1 November 2023. The complainant’s contract says “Garden Leave refers to a situation where an employee is required to serve out a period of notice at home.” It is clear to me, from this definition, that the respondent considered the complainant’s employment had come to an end but as she had just returned from maternity leave they would continue to pay her while the consultation period took place.

In these circumstances I find that the respondent had already decided the complainant’s employment had ended. This means they did not follow fair procedures and the consultation period only amounted to being told what other positions were available. I conclude there was no genuine engagement with the complainant.

The complainant’s position had ended when the client withdrew its approval for that role. The respondent said the complainant was in a redundancy position. However, they failed to have genuine engagement with the complainant during the consultation period. I therefore find the complainant’s dismissal was unfair.

In relation to the quantum of award in this situation Section 7 of the Act, in its relevant parts, provides:

 “7. Redress for unfair dismissal

(1) Where an employee is dismissed, and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer or the Labour Court, as the case may be, considers appropriate having regard to all the circumstances:

 …. (c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances, or

(ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances, and the reference in the foregoing paragraphs to an employer shall be construed, in a case where the ownership of the business of the employer changes after the dismissal, as references to the person who, by virtue of the change, becomes entitled to such ownership.

 (2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to—

(a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,

(b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee,

(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid,

(d) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in subsection (1) of section 14 of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister,

(e) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the said section 14, and

(f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal.

(2A) In calculating financial loss for the purposes of subsection (1), payments to the employee—

(a) under the Social Welfare (Consolidation) Act 2005 in respect of any period following the dismissal concerned, or

(b) under the Income Tax Acts arising by reason of the dismissal,shall be disregarded.

…. (3) In this section—

“financial loss”, in relation to the dismissal of an employee, includes any actual loss and any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts 1967 to [2014], or in relation to superannuation;

The Complainant gave evidence that she had spent considerable time each day looking for suitable employment and produced copies of the applications she had made. She has not found alternative employment. I accept her evidence, but I am also aware from the cross-examination that her search was limited to permanent roles at a certain salary. This would have limited the positions available to her. Furthermore, it is clear that her role with the client no longer existed and the respondent unfairly dismissed the complainant by failing to engage fully in the consultation process.

Taking all of the foregoing circumstances into account I determine that compensation in the sum of €27,500 to be just and equitable.

Summary of Complainant’s Case: the complainant submits she was prevented from resuming her employment following the expiry of her maternity leave under the same terms and conditions that she was employed on prior to the expiry of her period of protective leave.

Summary of Respondent’s Case: the respondent submits that the client determined that the role undertaken by the complainant was no longer required. The person employed to cover the complainant’s maternity leave ceased in their role on 15 September 2023.

The complainant was contacted prior to her return to work as the complainant had made them aware she was having difficulties in accessing childcare. The then HR Manager advised her to hold off on organising childcare until they discussed the future requirements of the role upon her return from maternity leave. After she returned to work the complainant was formally placed on notice/at risk of redundancy.

Upon her return to work the respondent placed the complainant on ‘garden’ leave, when she was formally notified that her role was at risk of redundancy, and they sought to enter into a 30-day consultation period on 6 November 2023. This lasted until 14 January when the complainant was given one month’s notice until 15 February 2024, until which date she was paid her salary, notwithstanding the fact that the respondent was no longer receiving any money from the client.

The respondent submits there is nothing in this Act which prevents them from making an employee redundant, either immediately upon or shortly after the employee exercise her right to return to work.

Findings and Conclusion: Ms Walsh was unable to return to work from maternity leave to the same role she had when she commenced her maternity leave. The reason was that the role was no longer there because the client had told the respondent to cut a number of staff employed by the respondent on their site, including the complainant’s role. This resulted in the person providing maternity leave cover to be dismissed. In these circumstances the respondent put the complainant on ‘garden’ leave immediately her maternity leave finished on 1 November 2023. She did not go into work or carry out any work for the respondent, but she was paid her full salary and retained other terms and conditions of employment she enjoyed before going on maternity leave. All alternative roles discussed with the complainant were in a similar area but at considerably less salaries.

Section 27 of the Maternity Protection Act states:

(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— (i) 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 he had not been so absent from work during that period.”

I conclude that the respondent satisfied this provision by putting the complainant on ‘garden’ leave whilst alternative roles were explored. I therefore conclude this complaint is not well founded.

Summary of Complainant’s Case: the complainant submits she was prevented from resuming her employment following the expiry of her maternity leave under the same terms and conditions that she was employed on prior to the expiry of her protected leave.

Summary of Respondent’s Case: the respondent submits there was no change to the complainant’s terms and conditions of employment. Her contract provided that the “position is specific to the (client) contract only and subject to continuous client approval”.

Findings and Conclusion: I conclude the complainant returned from her maternity leave on the same terms and conditions as she had before she went on maternity leave, albeit that she was on ‘garden’ leave until the redundancy consultation period was concluded.

Summary of Complainant’s Case: the complainant submits she was subjected to discriminatory treatment on the grounds of gender and family status when she was prevented from resuming her employment following the expiry of her maternity leave on the same terms and conditions that she was employed on priory to the expiry of her period of protective leave.

Summary of Respondent’s Case: the respondent submits that the complainant has alleged the most recent date of discrimination to be 23 February 2024 which is after her employment had ceased with the respondent.

The respondent submits the complainant has provided no evidence in support of her claims in relation to getting a job, promotion, training, victimisation, reasonable accommodation, conditions of employment, harassment.

Findings and Conclusion: Given the circumstances, where the client withdrew its approval for the role on their site, this led to a redundancy situation. From all the evidence provided, both oral and written, I do not see that the complainant was treated differently than any else would have been in the same circumstances. I therefore find that the complainant is unable to demonstrate that she was discriminated against by the respondent.

CA-00062229-005 – Unfair Dismissals Act: for the reasons given above I find that the complainant was unfairly dismissed and I award compensation of €27,500.

CA-00062229-001 – Maternity Protection Act: for the reasons given above I find this complaint is not well founded.

CA-00062229-002 & 0006 – Terms of Employment (Information) Act: for the reasons given above I find these complaints are not well founded.

CA-00062229-003 – Employment Equality Act: for the reasons given above I find the complainant has failed to establish a claim of discrimination.