Complainant

Respondent

Parties

Srishti  Bhardwaj

Marketstar Europe Aebe Limited

Representatives

Cillian McGovern BL instructed by Crushell & Co Solicitors

Niamh McGowan BL instructed by Maples & Calder

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-00059428-001

17/10/2023

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

CA-00059428-002

17/10/2023

The Complainant is highly qualified technology engineer who worked for the Respondent in a variety of roles since Match 2019. She was dismissed on the 9th of September 2023 while pregnant. The Complainant has submitted a complaint under the Employment Equality Acts alleging that her dismissal was discriminatory on the basis of her family status and gender.  

The Respondent provides outsourced inside sales and customer support services to a number of high-profile technology clients. They submit that frequent changes to staffing levels are a core element of this business model. The Complainant was a highly valued member of their team but the client whose project that she was working on reduced headcount. They argue they engaged with her extensively through a fair and transparent redundancy process and that they tried to source alternative employment for her but were unsuccessful. Her redundancy was in the context of a wider contraction of the tech sector in 2022 and 2023.   

The Complainant’s representative Mr Cillian McGovern BL made detailed written and oral submissions on her behalf.

The Complainant gave evidence under affirmation.

She has over 10 years’ experience in software experience and sales. She moved to Ireland to do an MBA focusing on cloud computing.  After she joined the Respondent she worked as a team lead and eventually went into sales and training.

She has always delivered on what was assigned to her and was always a true and honest employee.

She was pregnant on two occasions while working for the Respondent. The first time she was also at risk of redundancy during her pregnancy and had been given about 5 months to find a suitable alternative role. She went on maternity leave for 8 weeks during this period. She successfully applied and got another role during that time. During that period, she had a number of meetings with HR. She was given an opportunity to apply for any new roles and was encouraged to apply for them. She thought highly of the Respondent’s HR team during this process.

In October 2022 she began working on a specific project to train the EMEA sales reps for a specific client. She also did quality control for these teams such as reviewing calls and carrying out specific in person training sessions.

On the 29th of June the Respondent communicated a decision to reduce the headcount of the Complainant’s two-person team by 50% and to provide a single restructured role which would be global rather than EMEA focused. This role was going to be more operational and was graded at a more junior level than the Complainant was. It more closely matched her colleague’s existing role.  At this point she was in the final few weeks of her second pregnancy and was due to go on maternity leave on the 7th of July. She felt she was being punished for being pregnant. It was a very stressful situation to deal with in the last weeks of her pregnancy. The Complainant’s colleague was not pregnant and applied for and got the retained role. The Complainant did not apply for the role as it was more junior than her current grade. 

A redundancy consultation process was commenced it was to last between the 29th of June until the 16th of July.

There was a meeting in early July and the Complainant applied for a global role manager role working with a different client. The Respondent responded the next day that she had not been successful in this application.

The Complainant then went on Maternity Leave for an 8-week period on the 7th of July. She asked HR to email with any relevant roles while on maternity leave. She understands that there was no relevant role during that time but she thought they would have kept in touch in some fashion. She received a Linkedin recommendation from Ms Sadlier, the Senior Sales Director she worked under, which read as if she was already redundant.

She thought when she came back from maternity leave given a window to apply to roles. She had a meeting on the 23rd of August with HR while she was still on maternity leave. They offered for her to stay on maternity leave or to return on the 4th of September and to get a termination letter with two weeks’ notice.  She asked for a termination letter on the understanding she would have two weeks to apply for roles.  However, her access to the Respondent’s systems ceased on return and she couldn’t apply to any role. She was issued a letter stating that she was terminated as of the 4th of September and paid notice in lieu and statutory redundancy. She was not given prior warning and was shocked. She appealed her dismissal on the 8th of September.

She submitted a detailed appeal on the 19th of September where she attributed the decision to make her redundant to her pregnancy. She did not accept that there was enough information provided to explain why her role was made redundant back in July. She was also not satisfied with the decision to reject her application for the role with a different client which she was not even interviewed for. Finally, she challenged the decision to terminate her on the 4th of September rather than provide her with two weeks in which to find a further role.

The Complainant received an email back rejecting each point. She did not engage further and had little confidence in the Respondent’s internal processes.

She applied for another role after her termination as a Sales Operations Manager but the hiring team never called her back.

The Complainant was cross examined by Ms McGowan for the Respondent.

She disputes that she was given proper justification for the redundancy of her role. The Respondent did mention cost cutting measures but didn’t explain why she was chosen. She didn’t apply for the retained role as it was far closer to her colleague’s role than hers and it would have been a demotion.  

There were seven roles open at that time and the Complainant applied for the only she considered suitable. She was rejected almost straight away after a review of her CV. She disputes the feedback she received but accepts that the first time she brought this up was in September.  She does not know why the hiring manager made the decision not to interview her. She did not dispute that semi-conductor industry experience was not contained in her CV.

She accepted that she opted for shorter maternity leave before her role was put at risk for redundancy, it was not in response. She accepted that the Respondent operated a childcare fund to support employees return to work.

They met with the Complainant on the 28th of June, 29th of June and then 3rd of July.

The Complainant accepts that Ms McGahern clarified the contact level expected between her and the Respondent before she left on maternity leave and that they were to communicate if there were any internal opportunities. The Complainant disputes narrowing the range of roles she was interested in into the Quality Assurance field. She points out that she does not know what roles were actually available. Just because she didn’t receive any update as to suitable roles doesn’t mean there was none there, she does not know how the Respondent was filtering the roles.

She accepts that they offered her the option of extending her maternity leave so that she could continue to explore the possibility of staying at the company and that the alternative was to receive notice of termination when she returned. 

She chose the latter option but understood that the consultation period would continue through her notice. She did not know that she would be paid in lieu and her access cut off. She agrees that she did not challenge this when it happened and attributes this failure to the shock of being cut off.

The Respondent was represented in the hearing by Ms Niamh McGowan BL who made detailed oral and written submissions on their behalf. The Respondent presented two witnesses.

Steffanie Sadler gave evidence under oath.

She is a Senior Director of sales for Marketstar. She leads large programs for the Respondent and in led the wider programme of work for the Respondent’s client that the Complainant was assigned to.  

The Respondent provides outsourced inside sales support to high profile tech clients. Their business is very sensitive to changes in the wider tech market. This market changed significantly in 2022 and 2023 and the Respondent went through a series of redundancies.

As an external provider the Respondent’s business is first to get hit by this climate and redundancies can be common.

In April 2023 the Respondent’s CEO Keith Titus began indicating that she would need to engage in significant cost cutting over the Summer of 2023 due to client demands. Savings in the region of €500,000 would need to be made and there were a series a changes, including to Ms Sadler’s own role.

The quality assurance team was reduced generally and specifically they removed the role of quality manager trainer in Dublin. The client had decided it wasn’t necessary as their hiring of new sales staff was mainly occurring in the states.  There was also some offshoring of work.  Not all of that detail was given to HR as it was a business level decision and was determined with the client.

She was not involved in the consultation process in Dublin and was actually on leave for much of it.  Her understanding was that the Complainant’s role was gone the day they let her know and that she was allowed a period of time to apply for other roles.  

There was a 50% cut to the wider team. They went from eight to four employees. There was one reduction in Dublin the other three were in the US. 

The client saw that the training role wasn’t necessary because of the lack of hiring in EMEA region as compared to North America. They wanted a single quality assurance role to cover a wider region and not carry of training. There was a title change but the salary scale was linked to the junior role on the team.

Ms Sadlier did not reach out to the Complainant because she was on maternity leave and generally she wouldn’t reach out to an employee while they were on any type of leave. When she returned from her annual leave and found out the Complainant was on maternity leave she endorsed her on LinkedIn. The purpose was to help her get her next role whether it was in Marketstar or in another firm.

Maternity was in no way factored into the decision to make the Complainant’s role redundant.

Ms Sadlier was cross examined by Mr McGovern for the Complainant.

She was not involved in the implementation of the Irish redundancy process but had been involved previously in other redundancy processes in the USA.  There is a process of scoring employees based on factors and categories and then they reduce that team based on scoring.  Someone being absent on leave is not factored into the scoring.  

When Ms Sadlier wrote the Linkedin post she thought the Complainant was no longer working for the Respondent. She accepts that she didn’t go around promoting the Complainant internally to other figures in the business but she didn’t do this with anyone else either.   

The Complainant’s role as trainer was integral to the decision. There was another role available but she declined to apply for this role. Ms Sadlier’s accepts that it would have been a demotion.

Roles in the business are usually advertised externally and internally.

Ms Rachel McGahern gave evidence under affirmation.

She joined the Respondent’s HR function in Dublin in February 2020.

She recalled the change in Respondent’s business in April 2022. The moved from bringing in new business to losing business quite suddenly. This climate continued into 2023 when there was quite a dramatic change in headcount. The loss of the Complainant’s role was a part of this wider shift.  

In May 2023 the Complainant had notified the Respondent that she was taking maternity leave. Ms McGahern was aware that the Complainant already had a child. She is not sure whether the other member of the team has a child. 

This process was part of a big reduction in staff. In Ireland they went from about 200 to 140 staff in the space of a year. It was unlike the previous 2022 redundancy process. There were no other roles available or new business coming in to generate other opportunities.

The client had communicated that they wanted to cut costs and specifically the headcount. HR told the Complainant on the 28th of June ahead of the formal meeting on the 29th of June. This was a courtesy as she is the line manager of the other person who was being put at risk. The formal meeting then proceeded the next day. A Mr Chad Coles, representing the business side of the Respondent explained the situation to them and then Ms McGahern outlined the retained role and that they could both apply for it.  This role was kept at a junior level because of the client’s cost pressures.

She was aware that this decision came at a bad time for the Complainant and put her in a difficult situation. However there was nothing that she could do about it. Maternity was not a factor in the decision to make this post redundant.

The Respondent only pays 6 weeks maternity leave. However they do offer a significant childcare allowance of €5000 which is grossed out so employees don’t pay the benefit in kind on it. This is towards childcare costs. It’s an unusual and generous benefit.  

After the meeting she wrote to the Complainant with all available roles. There was a Global Manager role for a different client which required knowledge of the semi-conductor sector. The Complainant went for that role.

As she was about to go on maternity leave Ms McGahern wanted to get her application in as soon as possible and asked for it to be prioritised. The hiring manager came back and unfortunately determined that based on the Complainant’s cv she would not be suitable. Ms McGahern passed on this feedback.

The Complainant’s maternity leave did start before the consultation period ended. She had agreed that they could continue to contact her and they continued consultation meetings after this point. The Complainant told her to let her know if there were any quality assurance roles that were coming up. Ms McGahern was not under the impression she should contact her generally and without a specific reason while she was on maternity leave. No suitable role came up and in the climate this wasn’t surprising. As far as Ms McGahern knows there is still no suitable roles which have arisen.

In August they were very conscious that the Complainant had taken a very short maternity leave. She was returning to a situation where there was no role available to her. Ms McGahern arranged a meeting so they could discuss this and whether the Complainant might want to extend her maternity leave. The alternative was for her to come back and be issued with notice. There was no suggestion that there would be a further consultation when she got that notice.  Ms McGahern told her she would get her notice in lieu.

Ms McGahern emailed the Complainant after this meeting who responded requesting her notice of termination. As is standard where there is no role for her to perform they paid her in lieu of notice. The Complainant didn’t indicate that she didn’t want pay in lieu of notice. Once this happened their system automatically cuts the employee’s access.

The Respondent posts all of its roles internally and externally so access to their systems really didn’t matter. Headcount continued to reduce and then collective redundancies began.

Ms McGahern referred to the Complainant’s application for a role in October. This role was at a level above her current role. She wouldn’t have been the strongest applicant for this role. The Respondent obviously failed to follow up with her properly and a mistake must have been made.

The Respondent thought highly of the Complainant and would have liked to retain and develop her. If she had gone for the retained role she would have been successful.

Ms McGahern was cross examined by Mr Govern BL for the Complainant.

She insists that the client narrowed the scope of available roles to quality assurance. When taken to the minutes of that meeting, she accepted that they told her she would be considered for all roles within her skill set.

Ms McGahern does not think that the consultation period was particularly short. There was a set timeframe because of the client but it was in line with the norm.

She accepts that the Complainant’s maternity leave was not dealt with by the at risk letter. They wanted to treat both employees and keep the management of maternity leave separately.

There were no quality assurance roles available while she was on leave. Ultimately it was a very short maternity leave. She doesn’t understand why the Complainant wanted to come back so quickly. It wasn’t helpful to her situation as by staying on leave they would have had more time to find a suitable role for her.

Both parties refer to Section 85A(i) of the Employment Equality Acts which deal with the burden of proof. Specifically:

"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 to the contrary."

The Respondent disputes that the Complainant has proved facts from which discrimination can be inferred. They refer to the major cases of Southern Health Board v Teresa Mitchell ([2001] ELR 201 and Melbury Developments v Arturs Valpeters (EDA/0917) which discuss this issue and the circumstances it can be said that the presumption has been established.

The Complainant’s representative refers to Corcoran –v- Assico Assembly Limited EED033/2003 and Healy –v- Trailer Careholdings Limited EDA128 in which the Labour Court came to the finding that the fact of dismissal during pregnancy was enough to create the inference of discrimination and put the burden on the employer to prove dismissal was unrelated.

I agree with the Complainant’s representative on this issue. While the Complainant was not terminated until she returned from maternity leave the decision to make her role redundant was made while the Respondent knew she was pregnant. I am satisfied that the burden is on them to demonstrate that her dismissal was unrelated to her pregnancy.

I have made my determination through the lens two following two questions.

1.       Was the Complainant’s selection for redundancy linked in any way to her pregnancy?  

2.       Were the Complainant’s efforts to find an alternative role in any way hindered by her pregnancy?

Question One

Ms Sadlier gave evidence for the Respondent on the decision to select the Complainant’s role for redundancy. This evidence is summarised in the Respondent’s case section above. I found it convincing and clear. The Respondent was directed to cut costs by their client in light of the downturn in the tech sector. As a result of their business model the Respondent are extraordinarily vulnerable to these sorts of changes. The Complainant was the senior person on a team which trained in and monitored the quality of sales employees in EMEA. There was not much hiring in the EMEA region and the Complainant’s role did not generate new business in of itself. It was one of a number of cuts that took place.

The Respondent would say that both roles on the team were made redundant and that a new role was created. However, it is clear that the other member of the team more naturally mapped into that new role as it was at her grade and did not involve training. It would have been a demotion for the Complainant to move to that role. On review of Ms Sadlier’s evidence, I am satisfied that this was not due to the Complainant’s pregnancy and was due to the cost cutting nature of the exercise and the fact that they did not need a trainer based in Dublin. I also note Ms McGahern’s evidence that the Complainant would have got that other role if she went for it.

I would also note that the Complainant took minimal maternity leave of only 8 weeks scheduled during July and August and that she made this decision before she was told she was at risk of redundancy. In the circumstances it is hard to see why the Respondent would want to make the Complainant redundant due to her pregnancy. It was not particularly disruptive to the business.  

Question Two

The Complainant has brought up a series of issues that arose between 28th of June 2024 and her dismissal on the 4th of September which hindered her ability to find a new role with the Respondent and which she attributes to her pregnancy, either directly or indirectly.

Application for alternative role

The Complainant applied for an alternative role within the Respondent. This role was linked to a different client. Her application was rejected by the hiring manager on the 5th of July and the following reason was given.

Sufficient experience in the networking or telecommunications space is not evident. This role requires managing a team of technical account managers that drive software solutions' optimizations in the networking ecosystem. There is an insufficiency of relevant work experience that I can relate to the requirement of "deep knowledge of software development cycles" or "deeply understand the software and hardware industry". There is no experience evident in the semiconductor industry (redacted) on the CV.

The Complainant did not challenge this feedback at the time. It seems entirely unrelated to her pregnancy.

Contact During Maternity Leave

The Complainant was not contacted during maternity leave with any suitable roles. This is important as her maternity leave commenced while the consultation period was ongoing. Her evidence was that she communicated to Ms McGahern that she would like to be kept informed of any suitable roles. Ms McGahern’s evidence was that the Complainant only wanted to be considered for Quality Assurance roles. The minutes of the meeting before maternity leave, on the 3rd of July, were not entirely clear on this issue in that it said that the Complainant would be considered for all roles, it is silent on the issue of what they would  reach out to her about. The minutes of the meeting on the 23rd of August seem to clarify the issue in that they state that  Vicky confirmed that there were no available roles posted since Srishti went on maternity leave that would have fit the criteria of a suitable role as communicated by Srishti prior to going on maternity leave – Srishti agreed with this.

The minutes were circulated after the meeting, and it was confirmed during the course of the hearing that the Respondent posts all job adverts externally and internally. As such the Complainant could have known what was, or wasn’t, available.

I do not think that the Complainant’s maternity leave hindered her ability to find an alternative role within the Company and indeed it kept her in employment and available for internal roles. If she was not on maternity leave she would have been made redundant a month earlier on the 1st of August.

Immediate Redundancy After Maternity Leave

On the 23rd of August the Complainant met with HR. This was during her maternity leave and they were clear that there were no suitable roles available at this time. The Complainant was due to return to work on the 4th of September and in circumstances she would be issued with notice when she returned.

The minutes of the meeting are clear on the options which were put to the Complainant.

Vicky set out the options available to Srishti at this time:

1) Srishti may extend her maternity leave period as per legislation and can remain employed by MarketStar and continue to explore role options during the maternity period

2) Srishti may return to work on 4th September as planned which would lead to the company issuing a 2-week notice of termination of employment due to her previous role no longer existing and there being no suitable role available. A statutory redundancy payment would apply in this case and the notice period would be paid along with any outstanding leave accrued

Rachel advised that option 1 would likely be the preferable option at this time allowing more time to find a suitable role for Srishti within the company

After some further correspondence by email the Complainant confirmed the redundancy payment owing to her and opted for option 2. She returned to work on the 4th of September and was immediately terminated and paid in lieu of notice.

The Complainant’s evidence was that she did not know she would be terminated immediately and thought she would have two further weeks of notice to find a role. However, she did not raise this point until after that two-week period.

The Respondent should have been clearer that they would pay in lieu of notice and that the Complainant would be terminated immediately when she returned. However, I cannot see how much turns on this in the context of a gender/family status discrimination case. The Complainant was clearly offered the option of staying for at least a further 4 months by remaining on maternity leave and the Respondent promised that they would work with her to find a role in that time. She rejected the option clearly knowing that termination was the likely outcome. As the Respondent posted all vacancies internally and externally, the fact she was locked out of the system didn’t appear to actually impact the Complainant’s prospects of getting another role. The Complainant has failed to adequately explain why she only brought this up after the two weeks had expired.

Conclusion

The Respondent has established that they did not make the Complainant’s role redundant because of her pregnancy.

They have further established that the Complainant was not put at a disadvantage in finding an alternative role due to her pregnancy or maternity leave. She would have been dismissed a month earlier if she had not been on maternity leave. The Respondent also alerted her to the option of her carrying on her maternity leave so that they could continue to try to find her another role. She declined this option which would not have been open to her if she was not pregnant.

I am satisfied that the Complainant was not discriminated against by reason of her gender or family status.

I find that the complaint is not well founded.