Complainant

Respondent

Parties

Maria  Redmond

Institute Of Dermatologists Ireland Limited Institute Of Dermatologists

Complainant

Respondent

Anonymised Parties

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Representatives

Setanta Landers Setanta Solicitors

Daniel Spring Daniel Spring & Co

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00052907-001

21/09/2022

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

CA-00052907-002

21/09/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 18 of the Parental Leave Act 1998

CA-00052907-003

21/09/2022

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

CA-00052907-004

21/09/2022

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

CA-00052907-005

21/09/2022

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

CA-00052907-006

21/09/2022

The Complainant commenced her employment with the Respondent on 22 July 2019.  Her employment with the Respondent ended on 13 August 2022. Her role was that of Practice Manager. She was paid a gross amount of €4,833 per month and she worked 30 hours per week.  A complaint form was received by the WRC on 21 September 2022.

The Complainant provided a detailed written submission.

The Complainant submits that she commenced her statutory protected period of maternity leave in or around 29 October 2021.  This maternity leave was due to last until 29 June 2022.

The Complainant submits that over the course of her maternity leave she was asked to continue to carry out the responsibilities attached to her role (a list of those responsibilities was included in the written submission). During the period of her maternity leave the Complainant submits that she worked a total of nine shifts (dates supplied).

During the period of her maternity leave, the Complainant submits that she was also expected to be responsive to all calls, emails, and WhatsApp messages and that she dealt with over 200 work emails throughout the course of her maternity leave.

The Complainant submits that when she informed Professor Catriona Ryan co-owner of the Respondent company, of her pregnancy, she replied, “your priorities will change after having a baby.” The Complainant submits that she was aware of the culture in the business where pregnant employees were pressurised to only take a short time off after giving birth. As such she felt pressurised to continue her responsibilities while on maternity leave. The Complainant had been made aware that it was not the Respondent’s policy to pay employees when they were on maternity leave, but after she raised her concerns about this, she was told the Respondent would make an exception in her case and she would be paid for any work she performed while on maternity leave.

The Complainant submits that in or around 5 May 2022 she attended a meeting with Professor Caitriona Ryan and Professor Nicola Ralph co-owners of the company.  The Complainant’s requests that this meeting be held remotely to facilitate her child-care requirements had been turned down twice.  The Complainant was still on her period of protected maternity leave. The Complainant’s understanding was that this meeting had been arranged to discuss arrangements for her return to full-time work.  Instead, the Complainant submits that the meeting related to a grievance raised by a colleague against her. The Complainant was also asked to take over all maternity correspondence for a colleague. 

At this meeting of 5 May 2022, the Complainant submits she also discussed her upcoming return to work.  Due to her childcare concerns, the Complainant wished to reduce her hours to work 30 hours a week over 4-5 days.  This would offer the Complainant more flexibility in relation to childcare, but she would still carry out the same amount of work and responsibilities as prior to her maternity leave. The Respondents accepted a reduction in hours but informed the Complainant that she would have to take a 25% reduction in her salary.  The meeting was cut short due to the arrival of another staff member.

The Complainant submits that immediately after the meeting she emailed the Respondent to follow up on what was discussed. In her email the Complainant indicated that she did not understand why such a significant pay reduction was being imposed when she would have the same responsibilities and output of work.

In or around 6 May 2022, Prof Ryan rang the Complainant and told her that a trial period would be required to demonstrate that the reduced hours provided the same work output before an increase in salary could be considered. On 9 May 2022, the Complainant signed a revised agreement amending the hours of her contract.

The Complainant returned from maternity leave on 29 June 2022.

The Complainant submits that she returned to find that her role had been replaced by another employee, Ms Katie Hale, who had been given the title of Reception and Sales Manager.  The Complainant submits that at a meeting on 30 June 2022, her roles and responsibilities were taken away from her and divided among other members of staff. The Complainant provided a list of roles moved to other colleagues. During the meeting the Complainant asked if Ms Hale’s role had changed and she was told by Prof Ryan that it had and that Ms Hale would now manage reception, sales, staff, and scheduling. She confirmed that Ms Hale’s new role was that of Reception and Sales Manager. The Complainant asked Prof Ryan if her job was gone; Prof Ryan confirmed this.

The Complainant asked to speak with the co-owners privately following the above meeting. She explained to them that she was not happy with how the meeting of 5 May 2022, regarding her return to work from protected maternity leave, had been handled.

The Complainant submits that she was shocked to return to work and find that her role has been given to Ms Hale.

When speaking with Prof Ryan she was told that she had asked to go part-time; the Complainant explained that she had asked to reduce her hours and could carry out her role within those hours. Prof Ryan informed the Complainant that she had asked for her role to be defined. Again, the Complainant explained that she had asked for role to be defined against the Nurse Manager, not a new role of Reception and Sales Manager.  During the course of the discussion the Complainant stated that she told Prof Ryan that what she had looked for was that her hours be reduced not that her role be changed. The Complainant explained her dissatisfaction with being informed in a meeting with another colleague that her role was being removed from her, without her being informed of this in advance. Prof Ryan said that they owned the business and were entitled to give roles to whomever they pleased.

The Complainant submits that she became increasingly unhappy with the way she was being treated and the way her roles were removed. The Complainant felt an increasingly hostile environment against her as she had raised issues regarding her role on her return from maternity leave.

At 12.30 on 14 July 2022, the Complainant emailed her letter of resignation to the Respondent.  At 13.08 on the same day the Complainant was handed an envelope which contained a written warning pertaining to her the way she had raised her concerns on 30 June and stressing that the Directors were the decision makers in the company.

The Complainant submits that after receiving this letter she felt extremely unwell due to stress and was forced to leave work early to see her GP. The Complainant remained on certified sick leave.

On 19 July 2022, the Complainant’s access to shared work drives was removed and the passwords changed.  In 26 July 2022, the Complainant received a letter from the Respondent accepted that there had been a “redelegation” of tasks and that the Complainant had worked during her period of protected maternity leave.  The Respondent expressed a desire for the Complainant to invoke the internal grievance procedure.

The solicitors for the Complainant replied by letter to the above letter on 28 July 2022, stating that the internal grievance procedure was inappropriate, given that the grievance was against the two owners of the Respondent company.  The letter confirmed that the Complainant’s employment would end on 13 August 2022.

On 12 August 2022, the solicitors for the Respondent wrote to the solicitors for the Complainant.  In this letter the solicitors for the Respondent accepted that the Complainant had worked for the Respondent while on her period of statutory protected maternity leave, but suggested that this had been the choice of the Complainant. The letter also suggested that the Respondent relied on the Complainant for all HR and employment law advice when dealing with these matters, which the Complainant submits, appears to be a contradiction as to what was stated by Prof Ryan on 30 June 2022, in which she stated they “got legal advice on the matter” of reducing the Complainant’s role. The Complainant submits that the solicitors for the Respondent admitted that the Complainant did not return to work to the same terms and conditions of employment “because she had requested a fundamental change to her terms and conditions of employment.”  The Respondent also sought the reimbursement of 50% of all salary payments made to the Complainant during her period of maternity leave.

The Complainant cites several precedents to support the claims made. In relation to a Comparator, the Complainant cites Henry Denny v Roha [EDA 1310] and asserts that a hypothetical comparator can be constructed by asking why the Complainant was treated as she was.  If the treatment complained of was because of a protected characteristic, a hypothetical comparator is a person who does not have that characteristic.

The Complainant submits that it is abundantly clear that the Complainant was discriminated against and/or penalised due to her pregnancy and/or family status.  The Respondent failed entirely to recognise its obligations towards the Complainant as a pregnant employee with family status and the strong protection of such employees as a matter of Irish law pursuant to the Employment Equality Acts and EU law.  Having regard to the totality of the foregoing the Complaint’s claims should succeed.

The Complainant gave sworn evidence at the hearing.

The Complainant stated that she commenced working for the Respondent in July 2019 and she got on extremely well with both management and staff. She did a lot more work than her contracted hours both at home and in the clinic.  Her primary responsibilities included making sure standards were maintained across the board, HR, staff/patient interactions, she was on reception almost every day, working with visiting consultants, housekeeping, including stock; dealing with members of the public; input of information for invoices and VAT; sales.  The Complainant saw herself as being directly below the two professors in the staff hierarchy.  There was a weekly management meeting of the Complainant, the Nurse Manager and the two professors.  The Complainant looked after contracts of employment, although the templates had been created by an outside advisor.  The Complainant denied she was an expert in HR.

She also denied that employment matters were part of her role.

When asked what was in her mind when she was on maternity leave, the Complainant stated that she was aware of the (demanding) work ethic of the company and she did not want to be seen as not upholding this when she was out on maternity leave. The Complainant stated that her view was that there was an intolerance of anything except hard work.  She stated that when she regularly worked 45 hours a week in the clinic and then worked on her laptop at home most evenings, that she was contacted seven days a week by staff, that she was constantly working.

Regarding her maternity leave, the Complainant stated that on 13 March 2021 at the managers meeting she told the Professors that she was pregnant. The Professors were delighted for her.  Prof Ryan stated that the Complainant’s priorities would now change. The Complainant took this that the Prof Ryan was having “a go” at her work, she was shocked, and thought “they might be going to take away my job.”  The Complainant said she would not take full maternity leave.  She stated that Prof Ryan had come back from maternity leave after two weeks. The Complainant would be the first employee to go on maternity leave.  When asked if this had been explicitly told to her, the Complainant replied that it had not but that she had picked up they wanted hard work. There was no discussion at this point as to who might take over from the Complainant. The Complainant accepted that the Employee Handbook makes it clear that maternity pay was not paid to staff but it was alluded to her that she would get maternity pay from the company.

Regarding working after the birth of her child, the Complainant strongly disagreed to what was stated in the Respondent’s submission that, “she was not asked to continue to carry out the responsibilities attached to her role, rather it was the Complainant who insisted (quite forcefully) that she continue to carry out these tasks despite the Respondent’s best efforts to have her hand them over and take an uninterrupted period of maternity leave.” The Complainant also denied she refused to pass on emails as alleged in the Respondents’ submission. However, she did want keep her emails to herself as they were “sensitive.” She did also ask to be kept in the loop certain duties. The Complainant stated that she had submitted a list of things she would continue doing while she was on maternity leave. After some discussion it was agreed between the parties that she would be paid maternity pay; the Complainant took the pay as being a payment for the work she was going to continue doing for the Respondent while she was on maternity leave. Any plans discussed showed the Complainant would continue working while on maternity leave.  The Complainant stated that her email of 7 October 2021 was written to show her commitment to her job, she wanted to appear committed. The Complainant agreed that she did say that she wanted to stay involved as she wanted to maintain her role.

The Complainant stated that following commencement of her maternity leave on 29 October 2021, not only did she do the tasks she had volunteered to do she would say she did a lot more. She stated that she worked several days in the clinic, which were added to her leave. 

The Complainant stated that she never requested to return to a part-time position, she only wanted to work less hours, because she was struggling with time to get into the clinic with her childminding demands. The Complainant stated she only wanted reduced hours in the clinic so she could collect her son, however the Respondents wanted her to do a four- or five-day week. No reduction in her role was ever discussed. The Complainant accepted she had signed and returned a document containing the revised terms of her role, dated 24 May 2022. When asked how she would be able do her job in 30 hours, the Complainant stated that she “would have done more than 30 hours”.

At a meeting with the Respondents held on 5 May 2022, the Complainant stated that she was accused of bullying completely out of the blue, an issue of which she had no idea from where it could have come. The Complainant felt it was being used against her because she had looked for accommodation regarding childcare and would be used against her.

On her return to the clinic from maternity leave in June 2022, the Complainant says that she found several of the roles she had previously had been responsible for had been allocated to other staff members. This was done without any consultation or discussion with her. Some of the tasks taken away according to the Complainant were; performance management of clinical staff; stock taking duties; medical referrals; clinic management; sales.

The Complainant submitted her letter of resignation on 14 July 2022. She denied it was her intention not to return after she had handed in her resignation letter.

The Complainant stated that she decided not to initiate a grievance as her case was against the Directors and she would have had no one to go to with her complaint as the company policy states that staff should go to the practice manager.

The Complainant stated that she felt obliged to resign, firstly because she had been accused of bullying and secondly because her role had been taken away from her completely and when she had looked for a meeting to discuss this she had been humiliated. All this had been terribly detrimental to her mental health.  She did not think she had any other option. The Complainant felt she would not get a fair hearing.

The Complainant concluded her evidence in chief by stating that the Respondent was looking for repayment of €14,500 which was paid to her while she was on maternity leave. The Complainant stated that she did not sign the clause being utilised by the Respondent in this matter and in any case, she had worked over the course of her maternity leave and had earned this money.

On cross examination the Complainant accepted that she had completed a diploma course in HR but she had not been hired as a HR expert. However, she did agree that she was aware of her entitlements.

The Complainant agreed that she was a highly regarded employee. She denied she “took back” any hours she worked over her contracted hours and that most of the time she did not get back hours she worked while on maternity leave. The Complainant stated that the Prof Ryan’s comment about her priorities changing when she announced her pregnancy, was not said in a caring way and worried the Complainant about the security of her job. The Complainant accepted that she was told by Prof Ryan not to come back early from maternity leave. The Complainant stated that she was fearful for her job; this was her perception, though nothing had been raised by the Respondent about the security of her job.

Regarding the letter of 23 August 2021, setting out tasks to be handed over, the Complainant agreed that there was no reference in the letter about her working while she was on maternity leave.  Nonetheless the Complainant did not do a full handover as she wanted to “stay involved.”

The Complainant stated that she felt she had to keep in touch with her job and the Respondent had agreed she would continue doing some work while she was on maternity leave. She asserted that the only reason the Respondent agreed to pay her while she was on maternity leave was because it had been agreed that she would continue to work while on leave. The Complainant repeated that she did not wish to remove herself from her role as she was scared for her job. The Respondents knew she was working but never told her to stop.

When asked about her claim that she was forced to work and discriminated against, the Complainant stated that this was because no alternative was shown to her if she did not [continue working]. The Respondent could have brought someone else in, but they did not, “they kept me working.”

Regarding the reduction of hours, the Complainant did not agree that a 25% reduction in hours should be accompanied by an equivalent reduction in her rate of pay, as she would continue to do the same amount of work as before, she would just do it at home. Despite this the Complainant did accept the document outlining the hew terms.  Neither did the Complainant agree that she would not be able do the same work she did on 30 hours as she had done on 40 hours.  She did not agree that it was logical that some tasks she had had previously would have to be reassigned to other colleagues.

When asked about specific tasks mentioned above (performance management of clinical staff; stock taking duties; medical referrals; clinic management; sales) the Complainant was adamant that she had played a major role in each of the areas.

Regarding the non-initiation of a grievance, the Complainant stated that she would have had to have brought the grievance to the people against whom she had a complaint and because “they [the directors] were so entrenched in getting rid” of her role.

In concluding cross examination, the Complainant stated that she had been unwell after she handed in her resignation letter and had been certified sick for the duration of her notice period.

The Complainant stated that she had taken up the role of Practice Manager in a Dental clinic, whom she thinks, she had contacted before she had resigned from the Respondent company.  She started in this role after her noticed expired.

In concluding remarks, the Complainant’s representative stated that the Employment Equality Act lays out the right of an employee to return to the same job they had previously when they return to work but that although both parties agreed to a 30-hour week, one party (the Respondent) had unilaterally removed several important roles from the Complainant. This case is not about job titles but about the Complainant’s role which was diminished. The Complainant was always going back to work in excess of her nominal hours, as she always had done.

The Representative asserts that the conduct of the Respondent was such as to justify the Complainant’s resignation; the Respondent had done nothing to address the Complainant’s concerns about the removal of her responsibilities.  The Respondent saw she was upset about this but did nothing. The idea that the Respondent Directors could not deal with the Complainant is ridiculous, they are Directors. 

The Complainant’s representative finished by putting forward that the only victim in this case is the Complainant. She was forced out of her job when she sought accommodation to spend more time with her child, which would not have altered her ability to do the job; she simply wanted less of her time to be spent in the clinic and more of it to be spent at home.

Ms Hale was put forward as the comparator to be used.

The Respondent provided a detailed written submission.

The Respondent entirely rejects all the Complainant’s claims.

By way of background the Respondent explained that the Respondent is a limited liability company employing a team of nurses, aestheticians, administration, and sales staff. Professors Caitriona Ryan and Professor Nicola Ralph are the founders and co-directors of the Respondent.

The Complainant commenced employment with the Respondent on 22 July 2019, as Practice Manager.

In March 2012, the Complainant informed the Respondent of her pregnancy, with a due date in November 2021. The Respondent submits that the Complainant insisted that she did not want to take six months of maternity leave and that she would come back after a few months.  The Respondent submits that Professor Ryan made it clear to the Complainant that she absolutely needed to take that six months off to spend time with her new baby and that her priorities would change when the baby arrived. This was said in a very supportive way, encouraging the Complainant to take the time she needed (and was entitled to) and not make any work commitments.  The Directors reiterated this several times in the following months.

In May 2021, another employee was promoted to the position of Nurse Manager.  In this role the Nurse Manager reported into the Practice Manager albeit she had clinical duties and patient care responsibilities which did not fall under the Practice Manager’s areas of responsibilities.

During the Covid pandemic the Respondent limited the number of staff on the premises and from 16 March 2020 to 18 February 2021 there were no nursing staff on site. During that period the Complainant, exceptionally and temporarily, took over some of the Nurse Manager’s roles including medical referrals.  The role of distributing medical referrals was not re-delegated to the nursing staff until the Respondent went on maternity leave.

On 24 June 2021 the Complainant proposed to present to the team a plan for her maternity leave.  The Complainant’s plan included a commencement date of maternity leave of 29 October 2021 but an intention to deal with emails, pay stock invoices, and answer difficult emails about patients during November as well as a plan to attend the office on Friday 26 November 2021 and 17 December 2021 for payroll, to invoice consultants and attend the managers’ meeting.  She further planned to attend the office every Friday in January to attend managers’ meetings, run payroll, issue invoices to consultants, do VAT returns, pay invoices, and ensure upkeep of standards as well as checking emails throughout the week. The Complainant indicated her intention to return to work from May 2022 and expressed an interest (while acknowledging she was “chancing [her] arm”) in working four days a week with a 20% reduction in pay while stating she was “happy to do 5 days of course”.

The Respondent submits that despite attending weekly managers’ meetings the Complainant did not raise the issue of maternity pay until 13 August 2021 when she questioned Prof Ralph about whether she would be paid maternity pay by the Respondent. Prof Ralph informed the Complainant that she would not be paid additional maternity pay.  The next day, 14 August 2021, the Complainant sent an email objecting to this and requesting she be paid while she was on maternity leave.  The Respondent met the Complainant on 23 August 2021, to discuss this matter and even though the company policy made no allowance for maternity pay it was agreed that the Complainant would be paid her full salary (less statutory maternity benefit) for the duration of her maternity leave on an exceptional basis. This was confirmed to the Complainant in a letter which also asked the Complainant to carry out a full and detailed handover of her work to ensure that all her responsibilities were divided up amongst other staff members before she went on maternity leave. There was also a provision of the agreement to pay full salary for the Complainant’s maternity leave, that if the Complainant were to leave the Respondent’s employment within nine months of her return following maternity leave, the Respondent had the right to seek reimbursement of 50% of all salary payments made during the period of maternity leave.

The Respondent submits that on 1 September 2021 another employee Ms Katie Hale, was promoted from her position as Receptionist to the post of Clinic Co-ordinator reporting to the Practice Manager.

On 6 October 2021, the Complainant provided the Respondent with a document which she entitled Maternity Leave Checklist. The Respondent submits that this document, contrary to the Complainant’s current assertions, is a list of duties which crossed different roles and functions in the operation of the clinic. The Complainant sent a further email on 6 October clarify the matter. The Respondent queried the contents of the email concerned that the Complainant had taken on more than was good for her.  The Complainant confirmed that she was happy to continue with these tasks.

 The Complainant commenced maternity leave on 29 October 2021.  The Complainant’s maternity leave was due to end on 28 April 2022. Following the birth of the Complainant’s child the Respondent submits that the company Directors were very supportive and sent gifts.

A meeting between the Complainant and the Respondent took place on 5 May 2022. The Respondent submits that this meeting was expressly arranged for the purpose of discussing the Complainant’s request that she return to work other than on a full-time basis; it was not a disciplinary meeting as asserted by the Complainant in her submission. The meeting encompassed a discussion regarding good working relationships which the Respondent maintains was positive, constructive, proportionate, and sensitive. Most of the meeting according to the Respondent focussed on the Complainant’s request to reduce her working hours from 40 hours per week to 30 hours per week.  The Respondent agreed to the Complainant’s request to reduce her hours and told the Complainant that she would be paid pro rata so she would get 75% of salary as she would be working 25% less time. The Complainant was very unhappy with the proposal and said that she expected to be paid her full salary, notwithstanding the fact that she would be working 10 hours fewer per week. Within an hour of the meeting ending the Complainant sent the Respondent an email stating that she did not understand why her salary would be cut when her output would remain the same.

A phone call took place between the Complainant and Prof Ryan on 6 May 2022, to discuss the matter further, including the distribution of tasks in the clinic.  Prof Ryan deemed the call to have been positive. The Respondent wrote to the Complainant on 9 May 2022, confirming that the Respondent would facilitate a reduction in working hours from 40 hours per week to 30 hours per week with a pro rata reduction in salary. The Complainant accepted the offer on 24 May 2022. The following day the Complainant contacted the Respondent and asked that the team be notified that she would not be available for emails or WhatsApp message until her return to work in June.

The Respondent submits that the Complainant returned to work on 29 June 2022, in the role of Practice Manager with all the same key roles and responsibilities. As the Complainant had reduced her hours some of her more minor tasks and clinical tasks were reallocated to other staff. The Respondent provided a list of roles reallocated.

The Respondent denies that at a meeting of 29 June or otherwise or at all it was said that the Complainant’s role was gone. After this meeting had ended the Complainant sought some time with the Respondent Directors despite knowing that patients were waiting to be attended.  The Complainant was upset that some of her duties had been reallocated. No resolution was found and it was agreed another meeting would be scheduled.

On 13 July 2022, the Respondent wrote to the Complainant, setting out that any reorganisation of duties had been undertaken to facilitate the Complainant’s request to work reduced hours. The letter also addressed interpersonal difficulties between the Complainant and some staff.

The following day, 14 July 2022, the Complainant came into work at 12.30pm for a managers’ meeting starting at 1.00pm so the Respondent did not have the opportunity to give the Complainant the letter of 13 July 2022 until the meeting had closed. The Complainant had emailed her letter of resignation, dated 14 July 2022, to the Respondent’s Directors at 12.31, 29 minutes prior to the managers’ meeting. The Complainant gave four weeks’ notice intending her last day of employment to be 13 August 2022. As it transpired the Complainant did not work any of her notice period as she was on certified sick leave for the four-week period.

On 26 July 2022, the respondent wrote to the Complainant asking her to reconsider her resignation. The Complainant was encouraged to invoke the grievance procedure before making any decision regarding her employment in order that her complaints could be addressed.  The Complainant declined to engage with the grievance procedure as set out in a letter from her solicitor dated 28 July 2022.

Professor Caitriona Ryan gave sworn evidence at the hearing.

Professor Ryan stated that the Complainant had been employed as Practice Manager and had been excellent in her job. She was the only paid employee during the Covid closures.

Prof Ryan stated that the role the Complainant came back to was the same [as the one she had been doing before her maternity leave] except for Reception Scheduling and medical referrals which she said would have been expected to return to the Nurse Manager.

When Prof Ryan was told that the Complainant was pregnant, she was delighted for her, told her to take this time and never gave her an impression that she, the Complainant, needed to work during this period.  Prof Ryan stated that there was never any reason why the Complainant should be fearful of losing her job; she was excellent.

The witness sated that at the Directors ever did or said anything to make the Complainant think that they wanted her to work while she was on maternity leave; all her work could be divided up and distributed to other staff.  Prof Ryan stated that the issue of pay for the Complainant while she was going to be on maternity leave only came up until August 2021. Prof Ryan discussed this with Prof Ralph and they decided to pay the Complainant pay while she was on maternity leave because they wanted the Complainant to stay in the company. The witness categorically denied the Complainant was being paid while on leave for the work she was doing, “we never said work on maternity leave [it was] in her head- she insisted she wanted to do the work.” “In hindsight we should have said, ‘no you’re not allowed to.’”

The witness stated that after the Complainant requested a reduction in her hours, she and Prof Ralph discussed the issue and despite it not really suiting the practice, they agreed that they would accede to the request and try and get it to work.

Regarding the meeting in May, Prof Ryan said that this was all about getting the Complainant back and ensuring there would not be any interpersonal issues with other members of the team. It was according to Prof Ryan a very positive meeting until the Complainant brought up the matter of her pay.  When told that she would be paid pro rata to her hours the Complainant got very upset and left the meeting.  Following this meeting Prof Ryan and the Complainant spoke on the phone. Prof Ryan reiterated that the pay would be pro rata to her hours.  The Complainant said that if that was the case, she needed clarity on her roles.  Prof Ryan felt the meeting had been positive.

Regarding the meeting that took place on 30 June 2022, Prof Ryan stated that the discussion centred on the task checklist and the allocation of tasks and responsibilities. She said the Complainant was got irate at the meeting and was shouting.

At a meeting with the two company Directors, the Complainant said that they had taken her job away and had given it to another member of staff (Ms Hale). Prof Ryan said the Complainant was really upset that some roles had been given to this person and that she had been promoted. Prof Ryan stated that the Complainant was shouting at the two Directors and so they decided to arrange another meeting to include Ms Hale. Prof Ryan denies the letter to the Complainant dated 13 July 2022, given to the Complainant on 14 July 2022, was a disciplinary letter. There were no intervening meetings until 14 July 2022.  Prof Ryan said that she had seen the Complainant’s letter of resignation before this meeting got under way.

Prof Ryan stated that she wrote to the Complainant on 20 July 2022, regarding invocation of the grievance procedure, she did this as the Complainant had said that she had been forced to resign, which “we absolutely had not.  We wanted to see if she would change her mind.”

In concluding her evidence in chief, Prof Ryan stated that regarding the Complainant working while on maternity leave, it was the Complainant who would say, I will come in and I’ll take a day at the end [of her leave]. Prof Ryan said the Respondent never wanted her to come but agreed that they never prevented her from coming in, though there were times she told the Complainant not to come in. Prof Ryan denied the culture pressurised staff to come in, that this was “self-inflicted” and it was the Complainant who insisted she was the only one who could do the work.   Prof Ryan also stated that had the Complainant initiated a grievance her concerns on the grievance process itself would have been addressed.  

On cross examination, Prof Ryan stated that she had returned to work within a short-time following her own pregnancies; that she has a strong work ethic and the team is hardworking. She also stated that the Directors placed much of the HR responsibilities of the clinic in the hands of the Complainant.

Professor Ryan accepted that the Complainant should not have been working when she was on maternity leave. And she should have said something about it but the Complainant always wanted to work, “she insisted on working…she was incredibly eager.”  Prof Ryan said she both she and Prof Ralph had both missed the Complainant’s email of 24 June 2021 and that the issue of the Complainant working while on maternity leave only became apparent to her in August 2022. The witness did not deny the Complainant had carried out a good deal of work while she was on maternity leave, including evening and weekend work, but that the Complainant took the time back, for most things.

Prof Ryan denied that it had always been the Respondent’s intention that the Complainant would work while she was on Maternity leave; they wanted her to take her leave. Several of the roles the Complainant said were hers, were according to Professor Ryan, not done by the Complainant prior to her departure on maternity leave, all of her work could have been divided up.

When it was put to her that she was the boss and could have just told the Complainant what to do, Prof Ryan stated that she was [the boss], scared of her and that the Complainant would have taken offence.

Prof Ryan stated that the Complainant got angry when she met her on her return from maternity leave and went on to say that she had been constructively dismissed; that she was offended because reception scheduling had been moved from her.

Regarding the meeting of 5 May 2022, Prof Ryan stated that this was in her opinion a positive meeting, it was not in any way a disciplinary meeting in any way.

Prof Ryan denied that significant tasks were being taken away from the Complainant and said that the tasks that made the Complainant the Practice Manager stayed with her, she was “still Practice Manager in name and role.”  Prof Ryan denied categorically that on her return from maternity leave, the Complainant retained her title but her tasks were gone, that she was left with a vague overseer role.  She stated that the only task that was removed was the scheduling of the reception desk, a relatively small role, that the Complainant did everything, she was the second in command.

Prof Ryan stated that although she had read the Complainant’s letter of resignation before the meeting on 14 July 2022, she had not cancelled the meeting as she should have as she was in a state of shock. 

Professor Nicola Ralph gave evidence on oath for the Respondent.

Regarding the comment “your priorities will change,” Prof Ralph perceived this as a positive comment.  Prof Ralph stated that she could not understand why the Complainant felt she had to work while she was on maternity leave, it was the Complainant who said she did not want to be out. Early on following the announcement that the Complainant was expecting there was no discussion on her working while on maternity leave or pay while on that leave, the Directors expected all the Complainant’s roles would be handed over.  Prof Ralph stated that the discussion on pay while on maternity leave only arose on 13 August 2022, when the Complainant spoke with Prof Ralph on her own. Initially the Complainant was told this would not be possible.

Regarding the October list of tasks that the Complainant said she was going to continue to do, Prof Ralph stated that sometimes it was hard to get the message across to the Complainant, that she should have told her, but at times she was “afraid.” When it was put to her that she is a Director, Prof Ralph stated that, “sometimes you have to choose your battles.” She stated that there was no pressure coming from her for the work to be done. In Prof Ralph’s view, the Complainant felt she was the only one who could do the job, the Complainant, “said we would be ‘helpless,’ without her.” The witness did not think anyone else was needed to be taken on to cover the Complainant’s absence.

Prof Ralph accepted that the Complainant did do some shifts but this was unnecessary and that the time she did was added to her Parental Leave. She did not know why the Complainant had done the Christmas Payroll as the Company Accountant was meant to do it. Regarding the Complainant’s willingness to come in and assist with a handover, Prof Ralph stated that she “could not stand at the door and prevent her coming in.”

Following the Complainant’s return to work and her wish that none of her tasks should be taken from her, Prof Ralph stated that the Respondent was happy to play it by ear and see if it would work, but some tasks “menial” tasks would have to be taken away, but the Complainant still remained Practice Manager. When it was put to her that the Complainant’s assertion was that she would have only been left with a shell of a job, Prof Ralph asked why would the company pay someone to do nothing, that the Complainant was still Practice Manager.

In concluding her evidence in chief, Prof Ralph stated that she was away when the Complainant resigned and that the Complainant had never mentioned to her that she was unhappy to work while on maternity leave. She also put forward that if the Respondent had not believed the 30-hour week could have worked it would not have been agreed to.

On cross examination Prof Ralph was adamant that she had not seen the email from the Complainant dated 24 June 2021.  She stated that the issue of pay while on maternity leave arose for the first time in August and she had been “blindsided” by the request. It was agreed at a meeting held on 16 August 2021, that the Complainant would be paid while on maternity leave. Regarding the re-distribution of tasks, Prof Ralph stated that this had taken place at a time the Complainant had made it clear she did not wish to be contacted. Regarding the move to a 30-hour week, Prof Ralph stated it was not possible to fulfil the role of Clinic Manager from home.

In re-examination, Prof Ralph stated that there was no suggestion made that the Complainant would work 30 hours in the clinic and 10 at home and the agreement on the 30 hours was based on it being reviewed in a month, which never happened as the Complainant resigned before it could take place. Prof ralph stated that the Complainant took about three weeks to sign the new agreement which stipulated 30 hours work and 75% pay.

Ms Clare Corcoran, Nurse Manager, gave evidence on oath for the Respondent.

Ms Corcoran stated that when she joined her predecessor did medical referrals but then she was trained up on how to do them. Ms Corcoran stated that when the clinic reopened after the second closure due to Covid, she mentioned to the Complainant that she would take back responsibility for medical referrals, however, the Complainant said she would hold on to them, “you do not question Maria [the Complainant].” When the Complainant went on maternity leave, the witness took back the responsibility. Ms Corcoran stated that she did performance reviews but did get some advice from the Complainant particularly in matters HR related.

Regarding the Complainant’s resignation, Ms Corcoran stated that the Complainant told her that she had resigned just before they went into the meeting with the Directors.  On hearing this Ms Corcoran said she was shocked and suggested the Complainant talk to the Directors but the Complainant said that what had happened was illegal.

Ms Katie Hale, gave evidence on oath, for the Respondent. 

Ms Hale stated that she joined the Respondent in 2019 as a receptionist and in August 2021 she was made Clinic Coordinator. In June 2022, she was made Reception and Sales Manager, reporting to the Complainant or the Directors.

Ms Hale stated that she did the stocktaking once a month and if she found any discrepancies, she would bring them to the attention of the Complainant and she would deal with them. Ms Hale said she put in all the sales and the Complainant covered this task when she was on annual leave or lunch. The witness gave evidence on other roles she fulfilled. She said there were no issues about tasks when the Complainant was on maternity leave. Ms Hale stated that she had never made an allegation of bullying against the Complainant.

On cross examination, Ms Hale stated that she had been offered the post of Practice Manager in September 2023, she stated that she had not been aware that the Complainant had been questioned about her treatment of her; she stated that she assumed other people had brought it up but she had never raised it. 

In concluding remarks, the Respondent’s representative put forward that it was the Complainant’s idea and her decision that she work while she was on maternity leave.

The Respondent accepts the Family Status of the Complainant but questions the status of the comparator put forward (only at a very late stage) by the Complainant.

The Complainant was fully entitled to take her maternity leave but she decided not to do so. It was her choice and her wish to work while she was on maternity leave.

Regarding the changing of the Complainant’s roles when she returned to work, the Respondent Representative submits that the roles changed because the Complainant wanted to work 30 hours per week. These were minor changes in her role made so she could work shorter hours.

The Respondent’s representative submits that the Complainant has failed to establish a prima facie case that she was treated less favourably in in any way by the Respondent because of her Family Status.

In brief, the Complainant submits that she was discriminated against by reason of her family tatus in the conditions of her employment, by being forced to attend work and attend disciplinary meetings during her protected period of maternity leave.

In brief, the Respondent submits that it did not discriminate against the Complainant. Although the Complainant did work some shifts during her maternity leave these were at her request and insistence in order that she could extend her leave at the end of the period by earning days in lieu.

Discrimination for the purposes of this Act.

6.— (1) 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,

(b) a person who is associated with another person—

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.]

(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 they are of different civil status (in this Act referred to as “the civil status ground”),

(c) that one has family status and the other does not (in this Act referred to as “the family status ground”),

(d) that they are of different sexual orientation (in this Act referred to as “the sexual orientation ground”),

(e) that one has a different religious belief from the other, or that one has a religious belief and the other has not (in this Act referred to as “the religion ground”),

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

(g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as “the disability ground”),

(h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”),

(i) that one is a member of the Traveller community and the other is not (in this Act referred to as “the Traveller community ground”).

This complaint is made pursuant to the Employment Equality Acts on the family status ground.

Burden of Proof

I have examined whether the complainant has established a prima facie case of discrimination.  The Labour Court, in Mitchell v Southern Health Board [2001] ELR 201 emphasised that, in the first instance, the claimant “must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination”.   It continued:

 “It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the court 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 order to determine whether the complainant has established a prima facie case a three-tier test is employed:

First, the complainant must establish that she is covered by the relevant discriminatory ground.

Second, she must establish that the specific treatment alleged has actually occurred.

Third, it must be shown that the treatment was less favourable than the treatment which was or would have been afforded to another person in similar circumstances not covered by the relevant discriminatory ground.

In this instant case, the agreed facts of the case are that the Complainant is covered by the family status ground.

In considering the second tier, I do not find that the Complainant has established that the alleged treatment has occurred. The Complainant was not “forced” to attend work (as alleged in her complaint form to the WRC, her written submissions and at the hearing) during the period of her maternity leave. From the evidence adduced it is clear to me that the Complainant insisted, quite forcibly, that she wanted to work while she was on maternity leave. I note that the Complainant is qualified in HR matters and was the go-to person in HR related matters in the Respondent company.

Allied to the oral evidence adduced at the hearings, several documents indicate the Complainant’s desire to do some work while she was on maternity leave. It is plain to see in her email to Prof Ryan and Prof Ralph of 24 June 2021, that the Complainant had considered this matter carefully and created a plan outlining how this would work, in some detail.   I note the WhatsApp exchange of 24 December 2021, in which the Complainant was told by Prof Ryan, “absolutely zero way you are to come in, you are on maternity leave.” The email from Prof Ryan to the Complainant of 7 October 2021, when she wrote, inter alia, “Thanks so much for doing all of this and for what you are continuing to do when you are gone – if this becomes too much please tell us – your maternity leave should be a very special time.”, to which the Complainant replied, inter alia, “I’m delighted to stay involved throughout. I love working here and would hate to see anything go wrong or standards slip in my absence when it is not a bother for me at all.”  

In her evidence the Complainant stated that she only asked to stay involved because she was worried about her job.  No convincing evidence was provided to support this contention; indeed it seems the opposite was the case, she was a valued employee, she was the one selected to work in the clinic during the pandemic closure, she was paid discretionary pay while on her maternity leave, correspondence from the Directors demonstrates the esteem in which she was held. The Complainant stayed involved during her maternity leave, against the advice of the Respondent.

As the Complainant has failed the second tier, I find she has not established a prima facie case, her complaint therefore does not succeed.

The Complainant was not discriminated against.

In brief, the Complainant submits that she was discriminated against by reason of her family status in that she was victimised in that her role was reassigned while she was on maternity leave and she returned to a demoted and devolved position, when she sought childcare accommodation.

In brief, the Respondent submits that it did not discriminate against the Complainant. Although some minor roles were reassigned this was only because the Complainant had sought and was granted a change in her working week from 40 to 30 hours.

Burden of Proof

I refer to the Mitchel three-tier test above.

In this instant case I find the Complainant is covered by the family status ground.

Regarding the second test, I do not find that the Complainant has established that the alleged treatment has occurred.  From the evidence adduced I find that the reason the Complainant’s role was altered was only to take into account her request that she be allowed work a 30-hour week.  Her argument that she would have worked 30 hours but still have maintained the same output as that she provided before going on maternity leave does not stand up to scrutiny. It was the Complainant who suggested the shorter working week; it was not unreasonable for the Respondent to take some action to re-allocate some of her tasks to others.  Her position and title remained unchanged.  The Complainant’s contention that her email address was changed, indicating preparations for her exit, is not plausible in a situation where several other email addresses were also changed at the same time.

The Complainant was not discriminated against.

In brief, the Complainant submits that she was discriminated against by reason of her family status, in that she was victimised and minimised for seeking childcare arrangements, her salary reduced and her role reduced.

In brief, the Respondent submits that the Complainant was not victimised and that the only changes made to the Complainant’s role was in order to accommodate her request to reduce her working hours from 40 hours to 30 hours per week with a pro rata reduction in salary to reflect the reduction in her working hours by 25%.

Burden of Proof

I refer to the Mitchel three-tier test above.

In this instant case I find the Complainant is covered by the family status ground.

Regarding the second test, it is accepted by the Respondent that the Complainant’s rate of pay was decreased on her return from maternity leave. So, this test is passed.

However, I find the Complainant has not shown that the treatment was less favourable than the treatment which was or would have been afforded to another person in similar circumstances not covered by the relevant discriminatory ground.

The Complainant sought and was granted a reduction in her working hours from 40 hours per week to 30 hours per week.  Not unreasonably and as would be expected in all workplaces, the Respondent reduced the Complainant’s salary in a pro-rata manner. I do not believe that they would have done anything different for any other employee not covered by the family status ground. The Complainant may have looked for the reduction in hours because of her childcare requirements but this in no way negates the Respondent’s right to make a corresponding cut in her pay.

The Complainant was not discriminated against.

In brief, the Complainant submits that she was removed from her role prior to her return from maternity leave; that she was dismissed for discriminatory reasons. The Complainant submits that after her return to work from maternity leave, she became increasingly unhappy with her treatment and the removal of her roles. She felt that following her raising her issues around her maternity leave and the reduction in her role following her return from maternity leave, there was an increasingly hostile atmosphere towards here.  Her understanding was that she was no longer welcome in the Respondent company.

In brief, the Respondent submits that the Complainant has not provided any credible basis on which to prove an unfair dismissal. Additionally, the Respondent submits that it is counter intuitive that an employer could be held to have dismissed an employee on discriminatory grounds when they had no part in the actual termination of employment.

Burden of Proof

I refer to the Mitchel three-tier test above.

In this instant case I find the Complainant is covered by the family status ground.

Regarding the second test, I do not find that the Complainant has established that the alleged treatment has occurred, for the reasons set out below.

There is no provision within the 1998 Act which expressly governs constructive dismissal. Constructive dismissal is covered in the Unfair Dismissals Acts, 1977, Section 1(b) defines constructive dismissal in the following manner;

“the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer,”

It is for the Complainant to establish that her employment came to an end in circumstances amounting to a dismissal as that term is defined by the Act at Section 1 above. That section of the Act, and the case law since its enactment, has established two circumstances where an employee is entitled, or it would be reasonable, to terminate the employment relationship.

Firstly, in circumstances where the employer’s conduct amounts to a repudiatory breach of the contract of employment, the employee is entitled to regard himself or herself as having been dismissed. This is often referred to as the “contract test”. It was described by Lord Denning M.R. in Western Excavating (ECC) Ltd v Sharp [1978] I.R.L.R. 332as follows:

“If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself discharged from any further performance”.

In plain English, this means that where an employer makes a fundamental breach of an essential term of the contract of employment, the employee may consider him or herself to be constructively dismissed. In the instant case there was no evidence presented to suggest that the Respondent breached the contract test and attempted not to be bound by one or more of the terms of the contract of employment.  Any changes made were made following a request from the Complainant and linked to her desire to cut her hours.  Any changes made to her role was predicated on her reduced hours and were totally reasonable in the circumstances. Indeed, the Complainant accepted these changes by signing the agreement put to her.

Secondly, an unlawful constructive dismissal may arise where an employer’s behaviour is so unreasonable as to mean that the employee is left with no reasonable alternative but to terminate his or her employment. This test of reasonableness, when applied to the within matter, asks whether the employer conducted its affairs in relation to the Complainant so unreasonably that he could not fairly be expected to put up with it any longer. In this context, the Complainant must establish that she also conducted herself reasonably in terms of affording the employer the opportunity to address the issues which ultimately led to the termination of the employment.

In terms of the reasonableness of the Respondent’s behaviour, I note the Complainant’s assertion in her letter of resignation, 14 July 2022, “It has become abundantly clear to me that this is not just a demotion in name but that the company is actively managing me out of the position hoping that I will quit”. However, even if the Directors of the Respondent company acted unreasonably in their interactions with the Complainant, which for the avoidance of doubt I do not accept, I must also have regard to the reasonableness of the Complainant’s behaviour and note that she did not raise a formal grievance in respect of the actions of the Respondent in accordance with the grievance procedure in her contract of employment.

The requirement on a Complainant to exhaust the Respondent’s grievance procedure prior to a resignation in order to succeed in a claim of unfair dismissal has been emphasised repeatedly by the Employment Appeals Tribunal (EAT) and the Labour Court.  The most relevant case in this regard is Conway v Ulster Bank Ltd (UD 474/1981) where the EAT found that:

“the appellant did not act reasonably in resigning without first having substantially utilised the grievance procedure to attempt to remedy her complaints.”

Similarly, in Travers v MBNA Ireland Ltd [UD720/2006] the Employment Appeals Tribunal stated:

“We find that the Complainant did not exhaust the grievance procedure made available to him by the respondent and this proves fatal to the Complainant’s case. In constructive dismissal cases it is incumbent for a Complainant to utilise all internal remedies made available to him unless good cause can be shown that the remedy or appeal process is unfair.”

Desmond Ryan BL also set out the onus on employees in this respect in Redmond on Dismissal Law (2017) at paragraph 19.14: “There is something of a mirror image between ordinary dismissal and constructive dismissal.  Just as an employer for reasons of fairness and natural justice must go through disciplinary procedures before dismissing, so too an employee should invoke the employer’s grievance procedures in an effort to resolve his grievance.  The duty is an imperative almost always in employee resignations.  Where grievance procedures exist they should be followed”

In light of all of the foregoing, which is equally applicable to the 1998 Act, I find that there was no breach of the contract test and that the Complainant acted unreasonably in deciding to terminate her contract of employment.

The Complainant was not discriminated against.

Discrimination, victimisation, constructive dismissal.