Complainant

Respondent

Anonymised Parties

Employee

Employer

Representatives

Andrew Freeman Seán Costello Solicitors

Jennifer Murray Employment Law Section

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-00048051-001

07/01/2022

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

CA-00048051-002

07/01/2022

The Complainant is seeking adjudication by the Workplace Relations Commission under Section 30 and 31 of  the Maternity Protection Act, 1994 and has submitted that she did not receive her entitlement to maternity leave (CA-00048051-001).

The Complainant is seeking adjudication by the Workplace Relations Commission under 77 of the Employment Equality Act, 1998 and has submitted that she was discriminated on the grounds of gender, by being victimised and latterly on grounds of family status (CA-00048051-002).

Much of this evidence was in conflict between the parties and I have taken the time to carefully review all the evidence both written and oral.  I have noted the respective position of the parties.   I am not required to provide a line for line rebuttal of the evidence and submissions that I have rejected or deemed superfluous to the main findings.  I am guided by the reasoning in Faulkner v. The Minister for Industry and Commerce [1997] E.L.R. 107 where it was held “…minute analysis or reasons are not required to be given by administrative tribunals...the duty on administrative tribunals to give reasons in their decisions is not a particularly onerous one.  Only broad reasons need be given…”.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties under statute.  I can confirm I have fulfilled my obligation to make all relevant inquiries into these complaints.

The Complainant commenced employment with the Respondent on the 4th August 2008 and commenced maternity leave on the 1st June 2021 and returned to her employment on the 20th June 2022.

The Complainant submitted that whilst on maternity leave she was asked to attend work on a number of occasions in relation to an ongoing disciplinary investigation in regard to a work related incident that occurred on or about July 2020. The Complainant was contacted by the Respondent on the 9th of July 2021 by telephone, the 30th of July 2021 by telephone, on the 22nd  of September 2021 by email, on the 24th  September 2021 by voicemail and  on the 28th of September 2021 by telephone.

The Complainant submitted that on each of the aforementioned occasions she was informed by the Respondent that failure to attend would result in disciplinary action. However, she informed the Respondent that she would not be attending as she was on maternity leave. The Complainant stated that the threat of disciplinary action for her failure to attend for any form of interview was causing her severe anxiety and distress.

Ultimately, the Complainant was informed by the Respondent on the 13th October 2021 that, following advices, she would not be required to attend for interview or engage with the disciplinary investigation while on maternity leave. Further, the Respondent apologised if previous communication had caused her any distress on inconvenience.

The Complainant submitted that she was denied uninterrupted maternity leave, threatened with disciplinary action and discriminated against, on a number of grounds, when she attempted to exercise her statutory rights to maternity leave from July to October 2021.

Theses complaints were received by the Workplace Relations Commission on the 7th January 2022

The Respondent accepts the background facts and timeline in relation to the Complainants employment.

The Respondent submitted, at the outset, that in relation to the Complaints herein the Complainant cannot rely on the same facts to obtain redress under more than one head of liability, the purported complaint of discrimination on the grounds of family status is statute barred and the complaint of victimisation (in relation to one of the individuals assisting the Deciding Officer) has not been particularized and is un-stateable.

The Respondent submitted that the Complainant alleges that the aforementioned requests for the Complainant to attend for interview caused her severe anxiety and distress but no evidence has been provided of same.

The Respondent stated that although the Complainant was asked to attend for interview on the 3rd August 2021 and the 14th October 2021 both of these were cancelled before the dates in question.  Ultimately, it was confirmed with the Complainant that she would not have to attend until after her maternity leave.

The Respondent submitted that the Complainant was not refused maternity leave nor was she discriminated against on the grounds of gender or by victimisation.

It is the Respondents position that the Complainant is not entitled to succeed in any of the claims made in the course of this matter.

I have carefully listened to the evidence tendered and submissions made in the course of this hearing by both parties.

CA-00048051-001

The Respondent had sought the Complainant to attend for interview on a number of occasions  but ultimately confirmed on the 13th October 2021 there was no requirement for the Complainant to attend until after her maternity leave. The Complainant never had to attend for interview prior to the 13th October 2021 and she was paid her maternity leave in full. Further, the Complainant applied for and availed of parents leave, parental leave and the shorter working year after her maternity leave ended. Ultimately, the Complainant returned to her pre-pregnancy duties.

In consideration of the above, I am satisfied that the Complainant was not refused maternity leave and this particular complaint is misconceived and therefore not well founded.

In relation to a preliminary matter raised by the Respondent, I am satisfied that the Complainant cannot rely on the same facts to obtain redress under more than one head of liability as per the Labour Court decision of A School -v-  A Worker [EDA 122].

However, for the avoidance of doubt and in relation to CA-00048051-002:-

Section 85A of the EEA 1998-2011 sets out the burden of proof which applies to claims of discrimination. It provides, in effect, that where facts are established by, or on behalf of, a complainant from which discrimination may be inferred, it shall be for the respondent to prove the absence of discrimination. The test for applying that provision is well settled and it requires the complainant to prove the primary facts upon which they rely in seeking to raise an inference of discrimination. It is only if this initial burden is discharged and the Adjudication Officer is satisfied that the facts as established are of sufficient significance to raise a presumption of discrimination, that the burden of proving that there was no infringement of the principle of equal treatment passes to the respondent. The appropriate test for determining is that if the complainant does not discharge the initial probative burden required the case cannot succeed.

It is now well accepted that the first requirement for a successful claim lies in establishing a prima facie case. In that regard, I am conscious of the Labour Court’s comments in examining the circumstances in which the probative burden of proof applies in employment equality cases. In the case of Dyflen Publications Limited and Ivana Spasic (ADE/08/7) the Court adopted the approach of Mummery LJ in Madrassy v Nomura International plc [2007] IRLR 246, and stated that

“… the court should consider the primary facts which are relied upon by the Complainant in their

proper context. It also indicates that in considering if the burden of proof shifts the court should

consider any evidence adduced by the Respondent ..”.

In establishing the facts to meet the burden of proof resting on a Complainant, the Labour Court

commented in Cork City Council v McCarthy [EDA 0821] as follows:

  “The type or range of facts which may be relied upon by a Complainant may vary significantly from case to case. The law provides that the probative burden shifts where a Complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference of presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a fact or a set of facts which are proved in evidence. 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.”

In Valpeters v Melbury Developments Limited [2010] ELR 64 it is stated as follows:

“Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.

In Southern Health Board v. Mitchell Labour Court AEE/99/E, the Labour Court explained that the onus on the complainant in seeking to establish a prima facie case is: -

“The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise the presumption of unlawful discrimination.”

The Labour Court went on to say that: -

“It is only if those primary facts are regarded…as being of sufficient significance to raise a presumption of discrimination that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment.”

In establishing a prima facie case of direct discrimination, the complainant must, therefore, establish (a) that they are covered by the relevant discriminatory ground and (b) that there was specific treatment by the respondent, which could reasonably give rise to the presumption that less favourable treatment of the complainant had occurred.

The first ground of discrimination alleged by the Complainant is  under the protected ground of age is provided for at Section 6 of the Act: 

Section 6(1) of the Acts provides, inter alia, that discrimination shall be taken to occur where:

“(a) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where—

(a) 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) (in this Act referred to as the ‘discriminatory grounds’) which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned, “

Section 6(2)(f) of the Acts provides that:

“(2) As between any two persons, the discriminatory grounds (and the description of those grounds for the purposes of this Act) are: ....

(f) that they are of different ages, but subject to subsection (3) (in this Act referred to as “the age ground”),

In the circumstances of this case, I am satisfied, on the balance of probabilities, based on the complainant’s own evidence, together with the submissions filed and the documents tendered into evidence, that the complainant has not established a prima facie case in raising an inference of discrimination in relation to gender, victimisation or latterly family status. Accordingly this complaint is not well founded.

I find that the Complaint (CA-00048051-001) made pursuant to Section 30 and 31 of  the Maternity Protections Act, 1994 is not well founded.

I find that the Complaint (CA-00048051-002) made pursuant to Section 77 of  the Employment Equality Act, 1998  is not well founded.