Complainant

Respondent

Parties

Ms Danielle Dennis

North City Dental Properties Ltd North City Dental T/A North City Dental

Representatives

Ms Ellen Walsh Sean Ormonde & Co. Solicitors

Mr William Wall Peninsula

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-00060257-001

27/11/2023

This matter came before the Workplace Relations Commission dated 27/11/2023 as a complaint submitted under section 77 of the Employment Equality Act, 1998.  The aforesaid complaint was referred to me for investigation.  A hearing for that purpose was scheduled to take place on 21/06/2024.  The Complainant at all material times is employed as a Dental Nurse and she commenced employment with the Respondent in 2018.  The Respondent is a Dental Practice operating since 2007.

In her specific complaint CA-00060257-001 the Complainant claims discrimination by reason of her gender.  The Complainant claims the Respondent treated her unlawfully by discriminating against her in victimising her.  The Complainant claims the most recent date of discrimination was 19/09/2023. 

The Respondent wholly denies these claims. 

Both parties filed written submissions with the WRC.    

CA-00060257-001

Overview as per written submission

The Complainant fell pregnant in or about the 9th of September 2021 but sadly whilst on maternity leave in early 2022, on the 5th May her daughter passed away at 5 days old.  She was absent for approximately 13 weeks in total, returning to work 6 weeks after the loss of her child.

The Complainant submits she was advised when she sought a return to work on the 23rd of April that she would only be permitted to work the equivalent of 3 full working days spread over 4 days.

The Respondent alleged this was because the Complainant’s maternity cover had been contracted to work her hours for a certain period.  The Complainant accepted this arrangement on the basis it was temporary to allow her to ease back into work and allow the temporary cover to complete her contract.

The Complainant submits the said covering employee was later made permanent and the Complainant’s hours were never re-instated as before.

The Complainant took her 3 weeks of accrued annual leave for Christmas in 2022, and when informing the Respondent of this she replied “Oh, I thought you weren’t coming back to work here”.

The Complainant submits the Respondent had informed the Complainant during her first pregnancy that the Complainant was to log her appointments as worked hours in the payroll system.  In fact she was supposed to put them down as hospital appointments for account purposes, which was only discovered later.

On the 22nd of December 2022, the Respondent contacted the Complainant alleging that she had fraudulently claimed hours for antenatal appointments she had not attended in an effort to be paid more.  The Complainant submits the Respondent instructed the Complainant’s colleague [redacted] to take photos of the Complainant’s hours to show her.  

On the 23rd of January 2023 the Respondent’s accountant [redacted] telephoned the Complainant to ask why she had so many hospital appointments “this time around as Ciara wants to know”.  The Complainant submits she was then forced to explain to a complete stranger that she had lost her child and thus her pregnancy this time, was classified as a high-risk pregnancy.

The Complainant again fell pregnant and notified the Respondent in August 2022.  The Complainant submits the Respondent’s attitude towards her changed markedly during this time.   The Complainant submits she was repeatedly queried about recording her working hours – specifically hours relating to her attendance at antenatal appointments.  This claim became common knowledge amongst the Complainant’s colleagues as submitted by the Complainant.

Due to her high blood pressure and her high-risk pregnancy, the Complainant was deemed to be unfit for work.  She then began maternity leave on the 26th of January 2023 and happily gave birth in April 2023.

On the 10th of April 2023, the Complainant notified the Respondent by WhatsApp message that she intended to return on the 10th of October 2023.   The Complainant submits the tone of her message is cordial and positive.   The Complainant submits the Respondent replied in a very short and rude tone.   The Complainant submits she was then advised by the Respondent that she was required to provide them with two months’ notice prior to her return to work in October 2023.   The Complainant advised she was only required to provide four weeks’ notice, or two weeks if she intended to return before her scheduled date of return.  The Complainant submits this tone was entirely different from how the Complainant was treated by Ms Carroll before her second maternity leave as evidenced by texts between them.

On the 28th of August 2023, the Complainant sought to return to her role on the terms she left it - namely the three full days spread over four days as she had employed a childminder on the basis of those hours.

The Complainant submits despite unilaterally changing her contracted hours to this arrangement during her last miscarriage, the Respondent sought to force the Complainant to return to her contracted arrangements.  The Complainant submits the Respondent also failed to provide any clarity on what terms she would be returning until late August.

The Complainant submits she was advised by the Respondent that “it didn’t go down well that you can’t do the late shifts like everyone else” due to her family commitments. 

The Complainant submits the dentist with whom the Complainant had been working for over five years Mr Pier Antonino, the Respondent’s dentist, referred to her maternity leave twice in quick succession and outlined the Complainant was “unstable” due to her two pregnancies.

The Complainant submits this change also resulted in the Complainant being given the least desirable shifts.  The Complainant submits that when she brought these issues to the Respondent’s attention she was told she could not “force Pier to work with you. He has rights.”

Ultimately, the Complainant submits she opted to take a further seven weeks of maternity leave as agreed with the Respondent and later was certified unfit for work due to stress.   The Complainant remains on certified stress leave to this day.   The Complainant submits the child minder was available but as the Complainant could not return to work she could not afford the childcare costs. The Complainant submits to the best of her knowledge, the Respondent has now hired [redacted] to permanently fill the role of the Complainant.   The Complainant submits she remains on sick leave to date and hands in regular certs to her employer.

The Complainant submits the fact that the Complainant as the only pregnant employee was subjected to different and less favourable treatment in her dealings with the Respondent in her inability to return to work in the terms she had left and the comments from the Respondent’s employees raises an inference that the Complainant’s pregnancy caused her to be treated less favourably than another employee would have been treated.  The Complainant submits section 6(2A) of the 1998 Act, has been breached by the Respondent and the Complainant remains entitled to compensation for that breach.

The Complainant submits she was entitled to return to the post she held immediately before she commenced that leave or a suitable alternative.   The Complainant submits that what was offered was not a suitable alternative and was not offered for any other reason other than a thinly veiled attempt to punish the Complainant.  The Complainant submits her duties were assigned to the temp who was later made permanent and another nurse who took up her role with PA. 

The Maternity Protection Act 1994 at Section 26 outlines the Complainant was entitled to return to work in the job she held immediately before the start of her maternity leave namely her 3 working days spread over four days Monday to Friday.  The Complainant submits the terms she was to return on were less favourable in contravention of Section 26(b) as the shifts were less desirable, her dentist was different and the attitude of her manager was markedly less favourable than it once had been. 

The Complainant submits it is evident due to:

a. Ms Carroll’s marked change in tone and attitude to the Complainant following her second pregnancy announcement;

b. Mr Pier Antonino’s comments to the Complainant about her being unstable and not reliable enough to continue working with him;

c. The inference the Complainant was fraudulently doctoring records and overpaying herself;

d. The mistrust and questioning surrounding the Complainant’s level of antenatal appointments and being required to discuss the loss of her child with an abject stranger [redacted];

e. The untrue and slanderous letter authored by [redacted] presumably on foot of a request from Ms Carroll as to the Complainant’s character;

f. The comments by Ms Carroll to the Complainant’s colleagues that she was not returning to work (despite no indication from the Complainant that was the case); 

g. The unilateral change to the Complainant’s working hours on a permanent basis on her return from maternity leave;

h. The confrontation surrounding her statutory sick pay arising from her pregnancy with Ms Carroll; and

 i. The discussion of the Complainant with her colleagues in her absence by Ms Carroll;

The Complainant has suffered adverse treatment and it is now for the Respondent to prove that this adverse treatment did not arise as a result of her pregnancy.

Law relied on by Complainant

Section 6(1) of the Act provides, in relevant part, as follows: -

“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.

Section 6(2A) of the 1998 Act also provides protection for pregnant workers against less favourable treatment in the workplace. It provides:

“2(A) Without prejudice to the generality of subsections (1) and (2), discrimination on the gender ground shall be taken to occur where, on a ground related to her pregnancy or maternity leave, a woman employee is treated, contrary to any statutory requirement, less favourably than another employee is, has been or would be treated.”

The following case law is cited by the Complainant in support of her case:

Rotunda Hospital v Gleeson [DDE003/2000]

Cork City Council v McCarthy EDA21/2008

A Worker v Mid Western Health Board [1996] ELR 1

Dekkar v. Stichting voor Jong Volwassenen (VJV-Centrum) [1990] ECR 1-3941

Teresa Cross (Shanahan) Croc’s Hair and Beauty -AND- Helen Ahern [2019] 2 JIEC 0401

O’Flaherty v Univenture Ireland Ltd [DEC-E2010-094]

Mandy Hurley v Eazy Connections Ltd t/a Complete Outsource Solutions ADJ-00033976.

Summary of direct evidence of Complainant on oath

The Complainant states she commenced on a salary of 13 euro per hour on the following hours:

Monday 8 – 8; Tuesday 9 – 5; Wednesday 9 – 8; Thursday 7.30 – 4; and Friday 8/9 – 4.  The Complainant confirms the working patterns would have changed over the years.  The Complainant states she came back early from her first maternity leave and her full 40 hours was not available as the temp hired to cover her maternity leave was not due to leave. 

The Complainant states the other girls willingly gave her hours and she was meant to get her hours back when the maternity leave was over.  The Complainant states she chose to return early from her first maternity leave.  The Complainant states she would have been due to return in October but she came back on 25th June, and she states she had to approach the Respondent to give her hours. 

The Complainant states she became pregnant and she did not tell anybody until August 2022 as it was a high-risk pregnancy.  The Complainant states she went on sick leave before her second maternity leave and she was signed off for 3 days and commenced her second maternity leave on 26/01/2023.  The Complainant states she notified the Respondent of her return date and she was told she had not given enough notice.  The Complainant states the tone was abrupt and she felt she wasn’t wanted.  The Complainant states she was seeking to return to the role and the hours she left before her second maternity leave and this is what she wants.    

The Complainant states the Respondent said the hours had changed and she provided no clarity other than the hours and she told her things in the company were very fluid.  The Complainant states she couldn’t do the late shifts but she could have made arrangements.  The Complainant states Dr Antonino said she was unstable and he was left without a nurse and the other person had her family complete.  The Complainant states that they had worked together for 5 years.  The Complainant makes reference to the verbal altercation that took place with the Respondent before she left and that the Respondent was shouting at her and that everybody could hear and she told her to leave the building. 

The Complainant states she told her (the Respondent) that she would give her notice of two weeks when she was coming back.  The Complainant states she extended her maternity leave and there was no niceness there anymore.  The Complainant states her role was filled by [redacted]. The Complainant states she was never asked for certs during her first pregnancy.  The Complainant states she made sure her hospital appointments were on a Friday and nobody accommodated her and nobody asked her for certs.  The Complainant states she never returned from her second maternity leave and it was 40 hours or nothing. 

Summary of cross-examination of Complainant

It is confirmed with the Complainant that she was on 40 hours prior to the first maternity leave which she accepts and states that after the second maternity leave she thought she would be going back on the 27 hours.  When asked if the Complainant put it to the Respondent that she was entitled to come back on 40 hours at that time she replies no and that she assumed she would be going back on the 27.  The Complainant states when she returned from second maternity leave she assumed they would be her hours as they were overstaffed. 

When asked for examples of where the tone of the text messages changed the Complainant refers to the text message where the Respondent requests that its best that she deal with [redacted] the accountant when asked where she should send the cert saying she had been signed out of work. 

It is put to the Complainant that the Respondent will say she (the Complainant) had said she did not want to work the evening hours when she came back from first maternity leave and that she did not ask for her hours to be increased at that time.  When asked how many dentists the Complainant has worked with she states 2 dentists and the implantologist. 

When asked why the Complainant states she was of the opinion she wasn’t wanted the Complainant refers to the exchange of texts between herself and PA where she texts PA she has just heard she will not be working with him because he has requested [redacted] and she texts she hopes she has done nothing wrong as she thought they got on well as colleagues and friends.  PA responds that he was given a choice and he chose [redacted] as she (the Complainant) still had a month left of maternity leave and he needed stability as so far he had 6 nurses and it has really caused him stress having so many nurses.  The Complainant accepts she worked with others but she always worked PA’s hours.  The Complainant states she is only asking for the hours she had before she went on maternity leave and she accepts she never went back to work at all. 

Closing Submission Complainant

The Complainant has raised an inference of discrimination and the employer now bears the burden. The Complainant representative cites the case law set out in the written submission and detailed above.    

The Complainant representative submits the Complainant’s contract is irrelevant. 

CA-00060257-001

Overview as per written submission

The Complainant was employed from 2018 with the Respondent when she finished school.  The Complainant commenced employment as a Dental Nurse and Receptionist under a contract dated the 27th of October 2020.  Subsequently, the Complainant was offered and accepted the role of Dental Manageress Nurse beginning on the 11th of June 2021.  The Complainant was contracted to work 6 to 8 hours per day.

The Complainant upon leaving secondary school was employed within the respondent surgery as a trainee dental nurse.   She commenced her studies for Dental Nursing at Dublin’s Trinity College, where she was mentored by the Respondent during that period.

Upon qualifying, she received a pay rise where she earned €16 per hour.  The Complainant’s contracted hours are 36-40 hours per week Monday to Friday inclusive.  The Respondent submits that as a consequence of the nature of the business, hours continuously fluctuate both daily and weekly.  As often can be the case, staff are absent and it becomes necessary to stay late in order to facilitate clients.  The hours in 2018 were Monday 9am-8pm, Tuesday 9am -6pm, Wednesday 9am -8pm, Thursday 8am-6pm Friday 10am-4pm.

The Respondent submits the hours of work have changed since 2018 however the Complainant’s hours did not change. On average over a period of four years the Complainant worked 36.25hrs weekly in 2019, 32.4hrs weekly in 2020, 41.73hrs weekly in 2021 and 42.45hrs weekly in 2022.

The Respondent submits during the pandemic that practice lost a considerable number of staff and those remaining attended to the same workload prior to those leaving.  The Respondent submits as a result of this, the Complainant became one of the senior nurses within the practice.  The Respondent submits the Complainant was promoted and took on administrative duties which reflected in her pay.

The Complainant’s starting wage in 2018 was €13 per hour.

·       2020 - €13.00 per hour

·       2021 - €18.00 per hour

·       2022 - €19.00 per hour January

·       2022 - €20.00 per hour November

·       2022 - €21.00 per hour December

The Respondent submits the Complainant went on maternity leave on the 29th of April 2022 which would have expired at the end of October 2022.  The Respondent submits the Complainant’s child died following the birth and in June the Complainant contacted the Respondent via text message requesting an early return to work to improve her mental health.  The Respondent submits a nurse had been hired on a fixed term contract to cover the period of the Complainant’s maternity leave but the Complainant’s request to return was facilitated due to the circumstances attaching to the request. 

The Respondent submits the Complainant requested that she work a 3-day week and she did not want to work with the Orthodontist on Wednesday evening until 8pm as there was a fear patients would enquire into the complainant’s baby.  The Respondent submits in an effort to facilitate this early return, the Respondent spoke with the other nurses who agreed to take reduced hours as due to the early return of the Complainant the practice was now over staffed.  The Respondent was very appreciative of her other staff in this regard as she was able to assist the Complainant.  The Respondent submits having agreed these temporary arrangements, the complainant returned to the workplace on the 27th of June 2022, where she worked 3 days over four with Dr Antonino upon her return. The Respondent submits the Complainant requested that she not return to work with Dr [redacted] as his work related to late nights and she had requested that she not work those hours.

The Respondent submits the Complainant advised her that she was 4 weeks pregnant on 16th August 2022.  The Respondent submits the Complainant advised that as the pregnancy was a high-risk pregnancy, it would involve her attending medical appointments over the period of the pregnancy and as these appointments would fall on Fridays the Complainant requested that she was not asked to work on Fridays.

During the period form the August 2022 and the January 2023, the Respondent was very alert to how the complainant felt and the Respondent submits they accommodated this by having short surgery days and desk duties so not to have the Complainant carry out any stressful duties.

The Respondent submits this again was acceded to due to the nature of the issues experienced prior to this pregnancy and as part of this arrangement, the Respondent took on the administrative role belonging to the complainant.

The Respondent submits during this period the complainant received two pay rises.  The Respondent submits that on Monday the 9th of January 2023 she (the Respondent) was carrying out administrative duties where she observed that the Complainant was including Mondays in her weekly hours. This amounted to 8.75hrs.   

The Respondent submits that when the Respondent’s accountant was questioned as to whether or not the complainant was submitting medical certificates, and she was informed that no certs had been received.

The Respondent submits the Complainant was advised that she needed to submit medical certificates if she was attending the doctor.   The Respondent submits the Complainant was again absent from work on the 24th of January 2023 and again sought to re-coup a day’s pay.

On January 25th the Respondent spoke to the Complainant regarding days off to take up medical appointments without submitting a medical certificate is considered being absent without leave.  The Complainant remonstrated with the Respondent as to only having 1.5days annual leave and others having more.  The Respondent submits the Complainant advised that she would take her 3 days statutory sick pay and would get sick certificate to take her up to her maternity leave.  The Respondent submits the Complainant was annoyed by this conversation and started to shout at the Respondent saying that “she would come back from her maternity leave when she wanted and that there was nothing the Respondent could do about it.”  The Respondent submits the complaint was heard all over the practice.  The Respondent submits the complainant then went on sick leave prior to going on maternity leave. 

The Respondent submits the Complainant contacted the respondent on the 10th of August giving notice of her return to work on the 10th of October 2023.  The Respondent submits the Complainant indicated that she had a baby minder in place facilitating her return to work.

The Respondent submits the practice went through renovations in 2023 and became a 5-dentist practice with longer opening hours.  The Respondent submits Dr Pier Antonino requested that he continue to work with the Nurse with whom he had worked as he had become accustomed to her.

The Respondent submits the Complainant attended at the practice on the 4th of September to discuss her return to work.  The Respondent submits in order to facilitate the Complainant’s return to work, Dr [redacted] offered to work that week in order to facilitate her return whilst also facilitating the Respondent’s annual leave.

The Respondent submits that at that meeting it was explained to the Complainant that the practice had changed and that all the other staff were working longer hours.   The Respondent submits the Complainant was advised that it had moved form a 3-dentist practice to a 5-dentist practice.

The Respondent submits following this conversation, the parties held a conversation by text message suggesting a roster to suit the Complainant.  The Complainant wanted to return to work with the same dentist she previously worked with prior to her maternity leave.  The Respondent submits this was this was not possible nor is it contractual.  The Respondent submits it was  proactive in trying to accommodate the Complainant with her contractual hours all the while cognisant of the sensitivity of the situation.

The Respondent submits the parties met on the 6th of September to discuss rostered hours to facilitate the complainants creche arrangements.   The Respondent submits these rosters were incomplete in order to allow discussion.   The Respondent submits the Complainant insisted that she was to return to her original hours.  The Respondent submits the Complainant had not worked her original hours from the 27th of June 2022 to the 25th of January 2023.  The Respondent submits that during the complainant’s second pregnancy, she often worked in the reception allowing her to sit down and rest when she required.

The Respondent submits there was a text message from the Complainant later on 6th September that she had sought the advices of the Citizen Information Centre in that she was entitled to return to the work as if she had never gone on maternity leave and that her position is associated with one dentist and no other. 

The Respondent was informed by email on the 18th of September 2023 that the Complainant was availing of a further 7 weeks off work.

The Respondent submits on the 20th of November 2023 the respondent contacted the Complainant enquiring as to whether she was returning to work on the 28th of November 2023.   The Respondent provided a roster to the Complainant which the Respondent felt the Complainant would be happy to accept.  The Respondent submits the Complainant in response stated that she was attending her doctor.

The Respondent submits that on the 27th of November 2023 the respondent received a medical certificate for a 6-month period and following this the Respondent received correspondence from the Complainant’s Solicitors.

Legal Submissions

The complainant refers that she has been discriminated against on the grounds of her gender.  The Respondent refers to s.6(1) of the Employment Equality Act 1998 as amended (the Act of 1998); 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.

The Respondent further refers to s.6.2(a) of the Act of 1998

(2A) Without prejudice to the generality of subsections(1) and (2), discrimination on the gender ground shall be taken to occur where, on a ground related to her pregnancy or maternity leave, a woman employee is treated, contrary to any statutory requirement, less favourably than another employee is, has been or would be treated.

Council Directive 2002/73/EC of 23 September 2002 amending Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards to access to employment, vocational training, and promotion, and working conditions states:

“A woman on maternity leave shall be entitled, after the end of her period of maternity leave, to return to her job or to an equivalent post on terms and conditions which are no less favourable to her and to benefit from any improvement in working conditions to which she would be entitled during her absence."

Section 26 of the Maternity Protection Act 1994 as amended (the Act of 1994) states that a woman returning from maternity leave is entitled to return to work;

“under the terms and conditions not less favourable than those that would have been applicable to the employee if she had not been so absent from work”

S.26(2) of the Act of 1994 as amended provides that:

“For the purposes of subsection (1) (b), where the job held by an employee immediately before the start of the period of her or his absence on protective leave was not the employee’s normal or usual job, the employee shall be entitled to return to work, either in her or his normal or usual job or in that job as soon as is practicable without contravention by the employee or the employer of any provision of a statute or instrument made under statute.”

S.26(3) provides a definition for the term “job”:

“in relation to an employee, means the nature of the work which she is employed to do in accordance with her contract of employment and the capacity and place in which she is so employed”

It is submitted by the Respondent that the Complainant was returning to her employment following a period of maternity leave at the same or similar to the terms and conditions of employment previously enjoyed immediately prior to the start of that protected leave.

It is submitted by the Respondent that the Complainant upon her return was returning to her original position within her contractual hours in accordance with s.26(2).  The Act of 1994 requires that the employee is entitled to return to her “job” a described by s.26(3) in no less favourable terms that were immediately existing prior to her taking that protect leave.   As the position the Complainant held immediately prior to the taking of that leave was not her normal or usual job, the Respondent was returning the complainant to her usual job in accordance with s.26(2) of the Act.

The Complainant was returning to the same job on contractual hours as prior to the protected leave. The Respondent, having sent the complainant a roster of her hours for the week of her return to her job, was in return provided with a medical certificate diagnosing her a medically unfit to work for a period of six months.

The Complainant has complained that she has been discriminated on the grounds of her gender.   She has identified the date of 19th of September as being the latest date where the Respondent allegedly discriminated against her.  The Respondent submits it is not clear form the claim papers as to what act of discrimination the complaint is relying upon to advance the claim that occurred on the 19th of September 2023.

The respondent Respectfully submits that they have not acted in any way that could be referred to a less favourable treatment in any dealings with the Complainant.  It is respectfully submitted that the conduct of the Respondent does not amount to discrimination and that the complainant has not made out a prima facie case of discrimination as required by s.85 of the Act of 1998.

Summary of direct evidence of the Respondent Ms Ciara Carroll (hereafter CC) on oath

The Respondent has been in business since 2007.  The Complainant came to work for her initially in 2017 and she had been recommended by a friend of a friend.  CC states the Complainant worked a lot with her in the beginning and they had a very good relationship.  CC states they were all very invested in the pregnancy and they were delighted for the Complainant when she became pregnant.  CC states she was devastated and gutted when the Complainant lost her baby and really concerned for her as it was such a devastating loss to suffer. 

CC states the Complainant contacted her a few weeks after her loss and asked could she come in for a few hours.  CC states they all stood in reception and worked out something for the Complainant that would not be too strenuous.  CC states this was done purely on compassionate grounds and she was given very light duties as she was still very fragile.  CC states the Complainant was given some minor admin work as she did not think she was physically or mentally able to undertake a big volume of work. 

CC states she was careful to protect the Complainant’s job while she was on her second maternity leave; her job was protected completely and it was never given someone else.  CC states the Complainant left it to the last minute to advise of her return from her second maternity leave and she had to contact her to please provide the date she would be returning.  CC states she was due back in November / December and she came to the workplace and they gave her the gift they had all got for her. 

CC states the Complainant asked if there was any chance she could come back for 3 days.  CC states this was absolutely not possible.  CC states the creche times did not match with their shifts but that [redacted] gave her the 9-4 shifts which suited her.  CC states she was not given any late nights to suit her and CC states she was willing to compromise as much as possible.  CC states it was never her intention to deny the Complainant her hours and that she still remains on sick leave and she is still an employee. 

CC states the dentists all work together with the nurses on rotation and that she herself would have a different nurse every day of the week and they are paid to the end of the shift regardless. 

CC states the Complainant did not submit certs during the first pregnancy and CC did not become aware of this until the second pregnancy and this was brought to the Complainant’s attention when it came to CC’s attention while she was attending to admin work herself and she requested certs be forwarded to the accountant following which a verbal altercation took place during which CC states the Complainant shouted at her and pointed her finger in her face. 

Summary of cross-examination of Respondent CC

CC confirms the Complainant was recommended to her by a friend of a friend and she did not know the Complainant had worked in another dental practice.  CC is asked if she referred the Complainant to occupational health before allowing her to return from her first maternity leave to which she responds no that she acted out of compassion.  It is put to CC that she made the decision because she (CC) felt she was fragile to which CC responds that they were all caring for her and that it was her understanding that the Complainant was receiving counselling.  It is put to CC that she made the decision on what the Complainant could do to which CC responds that she basically did what the Complainant asked her to do.  When asked about the nurse hired on a FTC to cover the Complainant’s first maternity leave CC confirms she was kept on to replace someone who had left. 

CC is asked when did the Complainant sign the employee handbook to which she replies would have been at the desk where she worked and as the manageress of the practice she would known about it.  When asked what formal training the Complainant received as manageress CC accepts she had received no formal training.

When asked about the Fridays off for the second pregnancy CC states the Complainant had requested this and she had agreed to it due to the unusual circumstances.  When it is put to CC was it not the case she scheduled around her medical appointments CC responds that it related to the temporary arrangements in place at that time and that the Complainant had specifically said she did not want to work on Fridays. 

CC states that during this period the Complainant never complained and she never asked for more hours.  It is put to CC that she conducted no risk assessment; she did not send her to the company doctor; and that she never sought to have the Complainant checked to which CC replies the Complainant was attending her own doctor on a weekly basis and she was never given a note to say she was not able to work.  CC states she eased her back to the job.  Reference is made to text messages opened to the hearing which CC states are none of her business as the text messages are between friends and none of her business.  CC states that the Complainant is her employee and not the employee of a contractor dentist. 

It is put to CC that when the Complainant left to go on her second maternity leave she was working 3 days over 4 to which CC replies this was a temporary arrangement and the way she saw it she was returning to her full position.  When asked if she accepts the Complainant left on X and returned on Y CC states the Complainant had agreed on the times and the dates.  When asked if the letter from the Complainant’s solicitor called on her to return her to the hours CC states there was no further opportunity to discuss the hours.

Summary of direct evidence of Respondent witness Mr Piermichelle Antonino (hereafter PA) on affirmation

PA confirms he has worked in the practice for 11 years and over that time he has had many nurses.  PA states he was happy to work with the Complainant and that he would be happy to work with her now if she were back.  PA confirms that when the Complainant was out he was left on his own and he chose the person who was there and he could not chose the Complainant as she was on maternity leave.  PA states this was not personal and that it would be impossible that this would be personal.  PA states he and the Complainant were very close and that he considers her his friend and that he did work for her for free.  The Complainant states his team are his best friends and he had no problem working with her.

Summary of cross-examination of PA

It is put to PA that he was happy with the Complainant but that his opinion seemed to change when he said he needed stability and when he said she (the Complainant) was unstable to which he replies no he did not say that and that it was he who was unstable.  There is reference to a text between PA and the Complainant in which PA states that this is 2 maternity leave in a row and his job is already stressful but that he needs stability which is why he chose [redacted] as his nurse. 

PA states he is self-employed and if anything happens it is his responsibility.  When asked what CC had said to him he said she had said nothing it was not discussed and that as long as he has somebody to work with he does not care. 

PA states he had the choice there are 5 dentists now and he was given the choice between those nurses available to work.  PA states there may have been gossip about the Complainant returning and the hours she might be returning on, but he really does not care as long as he is provided with somebody, and he had to choose the best option for him.

Respondent Closing Submission

The Complainant was to return to her role as dental nurse manager in line with section 26(2) of the relevant legislation.  The texts opened to the hearing indicate that it was never her intention to return full time to her role.  The Respondent representative submits that no custom and practice applies here and the law requires that she returns to her role.  The Complainant’s terms are her contractual terms and arrangements were being put in place for a return to her same role in line with the requirements of the legislation.  The Respondent representative submits there has been no adverse treatment here and the Complainant has not been discriminated against. 

CA-00060257-001

The Complainant has alleged she has been discriminated against by reason of her gender.  The Complainant alleges victimisation. 

In conducting my investigation and in reaching my decision, I have reviewed all relevant submissions and supporting documentation presented to me by the parties.  I have carefully considered the oral evidence adduced at hearing.  I have carefully considered the caselaw to which I have been directed by the parties.   I deemed it necessary to make my own inquiries into the complaint during hearing to establish and understand the facts and to seek clarification on certain matters. 

Having considered at length all the evidence presented to me I find the within complaint is characterised by significant disparity in the perception of the parties as to the manner in which events unfolded on the Complainant’s return from her first maternity leave and the events that preceded her return from her second maternity leave.   I have two versions of events before me that are entirely at odds in most respects.  The timeline of the relevant events is not in dispute albeit each party sought to interpret events in accordance with their respective positions.   

While the tragic loss of the Complainant’s baby resonated with me and while what I feel for her in her loss goes beyond sympathy, I am bound to consider this complaint in light of the sworn evidence of the parties.  Moreover, I am obliged to draw my conclusions from the facts as presented to me and by the application of the law to those said facts whilst taking into account all other relevant factors and surrounding circumstances.  The role of the Adjudication Officer is to decide the case before him/her, resolving conflicts in evidence according to the direct evidence presented at hearing.  Where the evidence of the parties differs greatly and cannot be reconciled findings are made on the balance of probabilities.  In my decision-making role I am constrained both by statute and by precedent. 

The issues for consideration by me in the within complaint are as follows:

(1) whether or not the Complainant was subjected to discriminatory treatment by reason of her gender and in particular by reason of the terms on which she was to return to work following her second maternity leave when she sought to return to her role on the terms on which she had left it namely four days spread over three;

(2) whether or not the Complainant was treated unlawfully by discrimination against her in victimising her;

The Relevant Law

Section 6(1) of the Act provides, in relevant part, as follows: -

“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.

Section 6(2A) of the 1998 Act also provides protection for pregnant workers against less favourable treatment in the workplace. It provides:

“2(A) Without prejudice to the generality of subsections (1) and (2), discrimination on the gender ground shall be taken to occur where, on a ground related to her pregnancy or maternity leave, a woman employee is treated, contrary to any statutory requirement, less favourably than another employee is, has been or would be treated.”

This complaint is made pursuant to the Employment Equality Act, 1998 pursuant to the gender ground. 

The Burden of Proof:

Section 85A of the Employment Equality Act imports the burden of proof requirement to be established by both a complainant and a respondent.  The section shifts the burden of proof to the respondent where facts are established by a complainant “from which it may be presumed that there has been discrimination in relation to him or her”. 

Section 85A (1) provides as follows:

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

This requires a complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to him/her.  If he/she succeeds in so doing, then, and only then, is it for the respondent to prove the contrary.  The Labour Court has consistently held that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to a respondent.  “Prima facie” evidence is evidence which in the absence of any contradictory evidence would lead any reasonable person to conclude that a discrimination had occurred.

In Margetts v. Graham Anthony & Company Limited [EDA038] the evidential burden which must be discharged by a complainant before a prima facie case of discrimination can be said to have been established was outlined by the Labour Court as follows:

“The law requires the complainant to establish facts from which it may be inferred that discrimination has taken place.  The appellant must, on the balance of probabilities, prove those facts from which such inferences can be drawn.  When these facts are established to the satisfaction of the Court, the onus shifts to the respondent to show, on the balance of probabilities, that it did not discriminate against the appellant.  The mere fact that the complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination.  The complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.” [emphasis added]

The Labour Court in the case of Melbury v. Valpeters [EDA0917] held as follows in its consideration of section 85(A):

“…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 speculations, 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.”

When considering the primary facts adduced by the Complainant, I must take into consideration the Respondent’s contrary evidence when determining whether the burden of proof should shift to the Respondent.  The Labour Court in the case of Dyflin Publications Limited v. Spasic [EDA 0823] held as follows:

“…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 to show that, when viewed in their proper context, the facts relied upon do not support the inference contended for by the complainant.”   

The Relevant Facts

It would appear there was no history of discord or amicus between the parties prior to the disagreement that took place on the matter of the recording of ante-natal appointments and the requests for medical certs prior to the commencement of the Complainant’s second maternity leave. I note the conflicting evidence in relation to the manner in which this disagreement took place.  Irrespective of which version of events I prefer, the relevant law is set out hereunder. 

The relevant provisions of the Maternity Protection Act, 1994 (“the 1994 Act”) are set out as follows in section 15:

Right to time off from work for antenatal or post-natal care

15.—(1) For the purpose of receiving ante-natal or post-natal care or both, an employee shall be entitled to time off from her work, without loss of pay, in accordance with regulations made under this section by the Minister.

(2) Without prejudice to the generality of subsection (1), regulations under this section may make provision in relation to all or any of the following matters—

 (a) the amount of time off to which an employee shall be entitled under this section;

(b) the terms or conditions relating to such time off;

(c) the notice to be given in advance by an employee so entitled to her employer (including any circumstances in which such notice need not be given);

(d) the evidence to be furnished by an employee so entitled to her employer of any appropriatemedical or related appointment. [emphasis added] 

The Regulations referred to in the 1994 Act are to be found in S.I. No. 18/1995 – Maternity Protection (Time Off for Ante-Natal and Post-Natal Care) Regulations, 1995 which provides as follows:

3.  Subject to Regulation 4 of these Regulations, an employee who is pregnant and who has a medical or related appointed shall be entitled, without loss of pay, to take such time off from her work during her normal working time as is necessary to enable her to keep that appointment. 

4. (1) Entitlement to time off from her work under Regulation 3 of these Regulations shall be subject to an employee’s having –

(a) notified her employer in writing of the date and time of the appointment to which the time off from her work will relate as soon as practicable and in any event not later than two weeks before the date of appointment; and

(b) produced for her employer’s inspection, on request, an appointment card or other appropriate document –

(ii) indicating the date and time of the appointment, and [emphasis added]

(ii) confirming the pregnancy or specifying the expected week of confinement.

I note the Complainant took issue with the Respondent’s request that she provide documentation in support of her ante-natal appointments and this request is cited by the Complainant as an example of adverse treatment arising as a result of her pregnancy.   

The Complainant’s representative submits she (the Complainant) had never been asked for medical certs during her first pregnancy.  I am of the view that it is likely that the Complainant herself, in her role as practice manager, would have overseen the administrative functions of the practice including the management of her own ante-natal appointments during her first pregnancy.   It is not disputed that the Respondent undertook much of the administrative function in the practice during the Complainant’s second pregnancy while the Complainant was working a 27-hour week.    

Notwithstanding, I am unable to find that seeking clarification on the manner in which ante-natal appointments were recorded and a request for medical certs / supporting documentation to be a discriminatory act of adverse treatment arising as a result of the Complainant’s pregnancy.  I am satisfied it is standard practice across a broad range of workplaces both in the public sector and in the private sector that an employee may be asked to provide supporting documentation. 

I note the Complainant did not avail of her statutory entitlement in her first maternity leave and she sought to return to work a number of months before she would have been due to return.  I note the Complainant requested that she be facilitated by an early return to work to which the Respondent agreed, and she returned in May 2022.  It would appear the other nurses in the practice agreed to work reduced hours in order to facilitate the early return of the Complainant. 

Differing accounts of the manner in which this was achieved were presented to me but it is immaterial to this investigation as the fundamental fact is that the Complainant was facilitated and she did return on a 27-hour week.  The Complainant did not want to work evenings and this request was accommodated.   

At the core of the Complainant’s complaint is the fact that she wished to return after her second maternity leave on a 27-hour week which was the temporary arrangement that had been facilitated and agreed when she returned early from her first maternity leave due to the special circumstances prevailing at that time. 

It is noteworthy that in her written submissions the Complainant by her own admission accepted the arrangement on the basis that it was temporary to allow her to ease back in to work at that time and to allow the temporary cover to complete her contract. 

The Complainant became pregnant and informed the Respondent in August 2022.  The Complainant continued to work the 27-hour arrangement throughout her second pregnancy and I note she was accommodated with short surgery days and desk duties.  I note the Complainant commenced her maternity leave on 26th January 2023 having been signed off by her doctor due to high blood pressure from which she intended to return in October 2023.

It is noteworthy the Complainant did not seek to have her contractual hours restored or re-instated during her second pregnancy.  Conversely, it is equally noteworthy that the Complainant did not seek to have the temporary 27-hour week arrangement regularised.  I note the Complainant did not seek to have this temporary arrangement reduced to writing by way of an amendment to her contract of employment in order to formalise that which she now perceives to be her entitlement on her return from maternity leave and on which she seeks to rely to ground her claim in this regard.   

Section 26 of the Maternity Protection Act 1994 as amended (“the 1994 Act”) states that a woman returning from maternity leave is entitled to return to work:

“under the terms and conditions not less favourable than those that would have been applicable to the employee if she had not been so absent from work”

Section 26(2) of the 1994 Act as amended provides:

“For the purposes of subsection (1) (b), where the job held by an employee immediately before the start of the period of her or his absence on protective leave was not the employee’s normal or usual job, the employee shall be entitled to return to work, either in her or his normal or usual job or in that job as soon as is practicable without contravention by theemployee or the employer of anyprovision of a statute or instrument made under statute.”

Section 26(3) provides a definition for the term “job”:

“in relation to an employee, means the nature of the work which she is employed to do in accordance with her contract of employment and the capacity and place in which she is so employed”

The Complainant representative argues that the temporary arrangement entered into by the parties when the Complainant returned from her first maternity leave and which prevailed until the Complainant went on her second maternity leave six months later was now established as custom and practice. 

In effect the Complainant seeks to make the case that in circumstances where working a 27-hour week had been a feature of her working life for so long there was an implied agreement between the parties that this was now to be seen as a formal part of her contract into the future.  I find I am unable to accept this proposition for the reasons set out as follows.  The well-established test to ascertain if a term is implied into a contract through custom and practice is set out in O’Reilly v. Irish Press [1937 71 ILTR 194] wherein it was held that a provision can be implied into a contract by virtue of custom and practice where the term is so notorious, so well-known and acquiesced in that it may be taken to be an implied term of the employment contract.  I am satisfied that the temporary arrangement entered into by the parties in the within case was the epitome of what would be considered a singular and circumstantial arrangement between the parties.   

Furthermore, for an arrangement to be considered custom and practice it must be longstanding and followed by the parties over a long period of time.  The reality is this arrangement lasted 6 months.  I am unable to find this temporary arrangement has evolved into an implied term of her contract through custom and practice.  

I am satisfied the Complainant enjoyed the benefit of the reduced hours for the period of her second pregnancy which by her own admission and description was a high-risk pregnancy.  I am unable to find that the aforesaid discretionary benefit evolved into a binding term of the Complainant’s contract of employment by virtue of custom and practice.    

I note the Complainant texts the Respondent that she phoned Citizens Information and she was informed “that she returns from maternity leave as if she never left that is (1) same hours (2) same dentist (3) same working conditions as before her maternity leave.  The Complainant texts that she was also informed that she returns to work with the same employer (Pier) with whom she was working immediately before the start of her maternity leave.”  This was among a number of texts exchanged between the parties as the Respondent sought to agree working hours that suited the Complainant’s creche requirements. 

I note the Complainant seeks to return to work with the same dentist.  I accept as a matter of fact on the basis of the evidence adduced by both parties that there is a practice of rotation in this regard. 

On the application of the law to the facts as presented to me I am satisfied the Complainant was returning from maternity leave to her job as she was so entitled under the same contract of employment and under the same terms and conditions being no less favourable that those that would have been applicable to the employee if she had not been absent from work in compliance with the relevant sections set out above.  

I note the Complainant did not return from her second maternity leave and she submitted a medical certificate for 6 months on 27th November 2023.    

The Complainant claims she has suffered adverse treatment some of which claims are linked to her antenatal appointments the legal provisions pertaining to same which are set out above; some claims which are linked to her claim alleging a unilateral change to her working hours on return from her maternity which is not substantiated or borne out by fact.   

The Complainant alleges PA’s comments about her being unstable and not reliable enough to continue working with him constitute discrimination. 

I note PA in evidence states he did not say the Complainant was unstable.  I note PA averred that his job is stressful and he needs stability which is why, when given the choice, he chose the nurse that he did choose as it was the best option for him as he is self-employed and if anything happens it is his responsibility.  I note there appeared to be some confusion about PA’s status as the Complainant had stated she was entitled to return to the same employer (PA) as set out in her text above to the Respondent.  I am satisfied PA is a self-employed contractor in the dental practice and is not now and never was the Complainant’s employer. 

I am satisfied there is nothing in the Complainant’s allegations that could be said to have crystallised into a breach that amounts to discrimination of the Complainant by reason of her gender.  I am satisfied there is no fact set out in her complaint from which an inference of discrimination may be drawn or which supports a charge of less favourable treatment.  For the reasons set out above I find the test to establish a prima facie case has not been met by the Complainant. 

Victimisation

The Complainant alleges victimisation in her WRC complaint form albeit she did not advance or engage much with this specific element of the complaint at hearing as the main focus was on that which constituted the central plank of her complaint namely the alleged contravention of section 26(b) of the Maternity Protection Act, 1994.   

For completeness I will address the claim of victimisation hereunder on the basis of totality of the evidence adduced. 

Section 79 of the Acts provides:

 79.—(1) Where a case which has been referred to the Director General of the Workplace Relations Commission under section 77—

(1A) (a) Claims to have been discriminated against on more than one of the discriminatory grounds shall be investigated as a single case, and

(b) claims both to have been discriminated against on one or more than one of such grounds and to have been penalised in circumstances amounting to victimisation may, in an appropriate case, be so investigated,

but a decision shall be made on each of the claims.

The Relevant Law – Victimisation

Victimisation is defined under The Employment Equality 1998 Act section 74(2) as follows: “

(2) For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to—

(a) a complaint of discrimination made by the employee to the employer,

(b) any proceedings by a complainant,

(c) an employee having represented or otherwise supported a complainant,

(d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,

(e) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,

(f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or

(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.

The Labour Court has held that the definition of victimisation contained in that section contains essentially three ingredients and in the case Department of Defence v Barrett [EDA 1017] the Court held that in order to make out a claim of victimisation under the Act it requires that: -

“(a) the Complainant had taken action of a type referred to at section 74(2) of the Acts (a protected act),

(b) the Complainant was subjected to adverse treatment by the Respondent, and,

(c) the adverse treatment was in relation to the protected act having been taken by the Complainant.” 

Victimisation is a stand-alone cause of action which requires specific proofs in that there must be evidence that the alleged adverse treatment occurred as a reaction to any of the situations listed at (a) to (g) of section 74(2). 

It is apparent from the above that there must be a detrimental effect on the Complainant which is caused by her having undertaken a protected act of a type referred to at (a) to (g) of section 74(2). 

I must decide in the first instance whether or not the Complainant took an action that could be regarded as a “protected act” within the meaning of section 74(2) of the 1998 Act.  It is clear from the wording of “victimisation” in the 1998 Act that a complaint of victimisation must relate to a complaint under the 1998 Act and not a general complaint of victimisation. 

The alleged victimisation to which an employee was subjected must have a nexus with an action to assert equality rights in order to be admissible as such a claim.  In Moriarty v. Duchas [DEC-E2003-013] the Equality Tribunal emphasised that the definition of victimisation in the 1998 Act is very specific and “it is necessary that a complainant demonstrate the connection between his or her actions in defending entitlements under the Act and the treatment complained of.”   

Having carefully considered the three components that must be present for a claim of victimisation as set out by the Labour Court, I am unable to find that the Complainant took any action which could be construed as a protected act, even by imputing the most expansive meaning possible to the subsection.  I find that the case for victimisation does not meet the requirements of section 74(2).

Accordingly, I find this element of the claim namely the claim of victimisation to be not well-founded. 

CA-00060257-001

For the reasons set out above I find the Complainant was not discriminated against on gender grounds and I find the Complainant was not victimised.  Accordingly, I decide the claim of discrimination is not well-founded.  I decide the claim of victimisation is not well-founded. 

Maternity leave; return to work;