Complainant

Respondent

Parties

Katie  Walsh

Oatlands Before & After School Montessori

Complainant

Respondent

Parties

Katie Walsh

Oatlands Before and After School

Representatives

Michael Kinsley BL/ Daniel O Connell Keans Solicitors

MP Guinness BL/Lorcan Maule Mason Hayes and Curran

Act

Complaint Reference No.

Date of Receipt

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

CA-00062738-001

11/04/2024

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

CA-00062738-002

11/04/2024

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

CA-00062755-001

12/04/2024

The Complainant commenced at the preschool to provide support to the existing staff so that the child pupil ratio was reduced. This occurred based on an application made under a state support programme for Early Childhood Care and Education.  The programme is referred to as Access and Inclusion Model (AIM). An assessment takes place, and the purpose is to allow a child who has special needs to continue with their preschool education by reducing the child/teacher ratio. It is not a dedicated resource for that child. If the child leaves the school the funding also ceases.

The dispute in this case relates to whether the contract of employment was a fixed purpose contract that expressly linked the Complainant’s employment to AIM funding. The Complainant contends that the contract has no express term linked to AIM funding.

The Complainant’s employment ended while she was on maternity leave. It is argued that prima facie this meets the threshold to establish a prima facie case of discrimination based on gender.

It is also argued that in the absence of no express provision linking the employment to AIM funding an obligation rested on the employer to show that they considered alternatives before ending the Complainant’s employment while she was on maternity leave. As a prima facie case exists in order to rebut that assumption other alternatives must be explored as without that assessment the prima facie case cannot be rebutted.

The Complainant commenced work as a Montessori assistant on the 23rd of November 2022. On or about March 2023 she informed her employer that she was pregnant. At that time, she expressed concern about a child who could be aggressive. The Complainant commenced maternity leave on the 28th of August 2023 and gave birth to her daughter on the 24th of September 2023. The Complainant was on maternity leave until an intended return date of the 26th of February 2024. On the 7th of December 2023 the Complainant received a phone call from her employer to inform her that her employment would be ending. No conversation took place about alternatives. In early 2024 the Respondent advertised for Montessori positions that the Complainant could do.  The Complainant has not taken up employment since her employment ceased with the Respondent.

The Complainant’s position is once a prima facie case is established it is a high burden that must be reached to displace the inference of discrimination. The Complainant stated that both the Equality Tribunal and the Labour Court have in several cases emphasised the burden placed on an employer to demonstrate that a dismissal was for a reason unconnected with pregnancy. In Birmingham v Colour’s Hair Team, the tribunal found that while there was some indication that the employer had concerns regarding the employee’s conduct, the absence of procedures meant that the employer had failed to discharge the burden placed on it. The Respondent in this case is arguing that the role has been made redundant, yet there was no engagement with the Complainant about exploring alternatives. In the absence of such a process it must be the case that the process was unfair and discriminatory.

It is accepted that the burden of proof shifts to the employer to prove that the dismissal was not discriminatory. In circumstances where the funding was withdrawn from the Respondent and no other AIM funding was being received by the Respondent, it is submitted that the Respondent has discharged the burden of proof in all the  circumstances. The decision to terminate the Complainant’s employment was not linked in any way to her gender or family status as she would have remained in employment had the child NH remained within the Montessori. It is submitted that the decision was clearly directly linked to the withdrawal of funding as provided for in the AIM booklet.

The contract states the following:

1. COMMENCEMENT OF EMPLOYMENT

Your employment with Oatlands Before/After School & Montessori commences on 23rd November 2022.This position is term time and subject to funding through DCEDIY funding schemes and is subject to the numbers of children attending the service throughout the year.

3. JOB TITLE AND FUNCTION

Your position is that of Aim Support Worker reporting to Management. This is a part time position. Any oral or written description of your duties and responsibilities should serve as a guide to the main areas for which you shall be accountable in line with this contract. Cleaning duties are part of your role.

This Term Time positions working period is November 2022 to June 2023 with a view to extending the contract to the following school year, pending AIM Funding. In order to meet the requirements of Oatlands Before/After School & Montessori business and its reasonable operational needs, you may be required to carry out any other duties in addition to or instead of those to which you have been assigned.

However, you will not be required to carry out duties which you cannot reasonably perform. Staff are required to participate in regular job chats, staff meetings and annual appraisals.

I note in McDermott Chapter 10 Contract Law (Bloomsbury 2017) that what is referred to as the Factual Matrix pertaining to a contract agreement is important when deciding what the parties intended:

The factual matrix approach is firmly established in this jurisdiction. The leading case is now the decision of the Supreme Court in The Law Society of Ireland v The Motor Insurers’ Bureau of Ireland. 143 That case involved the question as to whether the MIBI agreement covered an insurer which had become insolvent. Both the High Court and the Court of Appeal held that it did. The Supreme Court disagreed and held that the courts below had erred in placing too much weight on the words used in one particular clause and not enough emphasis on the context of the agreement as a whole. Giving the majority judgment, O’Donnell J offered what must now be regarded as the principal explanation of the factual matrix approach in this jurisdiction:

‘Legal agreements are not poetry intended to have nuances and layers of meaning which reveal themselves only on repeated and perhaps contestable readings. Agreements are intended to express in a clear and functional manner what the parties have agreed upon in respect of their relationship, and the agreements often do so in a manner which gives rise to no dispute. But language, and the business of communication is complex, particularly when addressed to the future, which may throw up issues not anticipated or precisely considered at the time when an agreement was made. It is not merely therefore a question of analysing the words used, but rather it is the function of the court to try and understand from all the available information, including the words used, what it is that the parties agreed, or what it is a reasonable person would consider they had agreed. In that regard, the Court must consider not just the words used, but also the specific context, the broader context, the background law, any prior agreements, the other terms of this Agreement, other provisions drafted at the same time and forming part of the same transaction, and what might be described as the logic, commercial or otherwise, of the agreement.’ 144

The Respondent accepts that a prima facie case has been made out. Extensive case law was opened by the Complainant to show that a prima facie case is made out based on the facts as detailed. That position is correct, and I determine that a prima facie inference of discrimination has been made out.

I note in Bolger, Bruton, Kimber; Employment Equality Law 2nd Ed. 2022:

The need for a comparator

2-181

In general, a complainant must prove less favourable treatment as compared with another person in a similar position to the complainant. Therefore, without a comparator, the claim will fail, and the choice of comparator is of significant importance to the success of any claim. However, this does not apply to allegations of pregnancy-related discriminatory treatment where the law in general accepts a hypothetical non-pregnant comparator.

2-182

Section 6(2A) now provides, for the avoidance of any doubt, that less favourable treatment during pregnancy or maternity leave is deemed to constitute discrimination on the gender ground. Similarly, in the context of harassment and victimisation, the law does not require the need for a comparator in order for a complainant to succeed, as the focus is on the detrimental treatment which creates a cause of action without the need to show that a comparator was not harassed or victimized.

In Regan Employment Law 2nd Ed chapter 17, the use of a hypothetical comparator is referenced:

‘Less favourable treatment’ is more commonly known as ‘direct discrimination’ although that particular phrase is not used in the Employment Equality Act. In general, a complainant must prove less favourable treatment as compared with another person in a similar position to the complainant. If a complainant is unable to demonstrate that the chosen comparator/s were treated less favourably, if for example all employees were treated equally poorly or unlawfully, the claim of discrimination will fail. The wording of s 6 ‘would be treated’ allows for the use of hypothetical comparators in appropriate circumstances of alleged discriminatory treatment, other than in relation to equal pay where an actual comparator is required.’

In Mitchell v Southern Health Board, DEEO11 the Labour Court held that a ‘claimant must prove, on the balance of probabilities, the primary facts on which to rely in seeking to raise a presumption of unlawful discrimination.’  And in McCarthy v Cork City Council EDA0821 ‘that at the initial stage the complainant is merely seeking to establish a prima facie case. Hence it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.’

I note that in Murdoch and Hunt 2021 Edition Bloomsbury Prima Facie is defined as:

[Of first appearance]. On the face of it; a first impression. A prima facie case is one in which there is sufficient evidence in support of a party’s charge or allegation to call for an answer from his opponent. If a prima facie case has not been made out, the opponent may, without calling any evidence himself, submit that there is no case to answer, whereupon the case may be dismissed

Prima Facie Test:

The principle in discrimination litigation is that once a claimant establishes a prima facie case of discrimination the onus shifts to the Respondent, who must prove that no discrimination has occurred.

And the Court of Appeal England and Wales in Igen v Wong EWCA/Civ/2005 stated that the claimant must normally prove on the balance of probabilities facts from which the tribunal could conclude, [this does not mean must prove on the balance of probabilities] in the absence of an adequate explanation, that the employer has committed an act of discrimination against the claimant.’

I note that in Bolger, Bruton and Kimber, Employment Equality Law 2nd Ed. 2022 the following:

2-211

The case law on burden of proof in cases of alleged pregnancy dismissal has developed in a singular manner due to the particular provisions of the Equal Treatment and Pregnancy Directives. It is now well established that the existence of the pregnancy itself is sufficient to shift the burden of proof to the employer to prove that a dismissal of a pregnant employee was not on grounds of the pregnancy.378 In other words, the rules of burden of proof have been moulded in a manner to take specific account of the jurisprudence on pregnancy.

I determine that the Prima Facie threshold of an inference or presumption of discrimination has been achieved arising from the Complainant’s contract being terminated while on maternity leave.

Section 85 A of the Act states:

85A.—(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.

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to a complainant.

(3) Where, in any proceedings arising from a reference of a matter by the Authority to the [Director General of the Workplace Relations Commission] under section 85(1), facts are established by or on behalf of the Authority from which it may be presumed that an action or a failure mentioned in a paragraph of that provision has occurred, it is for the respondent to prove the contrary.

(4) In this section "discrimination" includes—

(a) indirect discrimination,

(b) victimisation

(c) harassment or sexual harassment,

(d) the inclusion in a collective agreement to which section 9 applies of a provision which, by virtue of that section, is null and void.

The Factual Matrix of this case clearly support the Respondent’s position that the contract was linked to AIM funding and that the Complainant’s position came into being arising from that funding. When the child left the school who had special needs the AIM funding also stopped.

The Complainant holds qualifications in childcare and preschool education at FETAC or QQI level 5 with reference to the national qualification standards. During the period a Level 7 position was advertised. It was open to the Complainant to apply, and she did not. The Complainant maintained that this role could be split and in turn that would have provided her with a role. However, there is no obligation on the Employer to manage their school in this way. The objective was to recruit at level 7 a more qualified person based on the best interests of the children.

While the Complainant was on maternity leave her role was temporarily filled and that colleague on obtaining a more suitable role left the school. The Respondent stated that if that colleague had remained at the school, she also would have had her contract end based on the AIM funding ceasing.

It is argued that the colleague filling maternity leave also provided after school support, which is paid for by the parents and not subject to AIM funding. When this colleague left (maternity cover) the after-school part time work could have been offered to the Complainant and was not.

The Respondent Lead Child Care Supervisor accepted in hindsight this was an option; however, based on the family circumstances of the Complainant and she had 2 young children to care for, she didn’t think these hours would be taken up. However, once another AIM funding position came on the radar at the school, she contacted the Complainant about her availability and there was no reply. Does the failure to offer the after-school role prima facie establish an inference of discrimination on the ground of family status? The Complainant was recruited conditional on AIM funding. When that ended as her contract was conditional on that funding her contract came to an end. The case before this tribunal is not a claim for Unfair Dismissal where the reasonableness or otherwise of the conduct of the employer maybe considered. The Respondent could have made contact to offer after school hours; however, there was no obligation to do so as the Complainant’s role was linked to AIM funding. The Respondent did contact the Complainant when AIM funding looked like a possibility to see if the Complainant would be interested to apply for this role. That text was ignored. The conduct of this Respondent on balance was reasonable and  considerate and decisions made relating to the Complainant’s employment entirely linked to AIM funding which had ended. As that is the case the claims made under the Employment Equality Act against this Respondent have been rebutted.

The Complainant argued that the express terms in the contract bound the Respondent to the Complainant based on the broad nature of her role responsibilities and the express link to DCEDIY funding which is much broader than AIM funding. However, that reference to DCEDIY funding cannot be viewed in isolation. This is where the factual matrix becomes crucial to understanding what the school was committing to and why they ended the contract:

This position is term time and subject to funding through DCEDIY funding schemes and is subject to the numbers of children attending the service throughout the year

It is a conditional contract based on funding and the number of children at the school. The decision to end the contract was unrelated to maternity leave, family status and gender. It was solely made arising from the cessation of AIM funding which is a DCEDIY funded scheme. An AIM funded position is not restricted to assisting one child rather it is to support the additional time and resource required so that all children’s needs in a class are met. It follows that the duties of the Complainant would be general; however, that does not mean that the role was not contingent on AIM funding.

 The evidence of the School Supervisor was honest and candid, accepted where there were deficiencies in how the decision to end the contract was communicated. However, it is also the case that the decision to end the Complainant’s employment was solely linked to AIM funding stopping. That condition was clearly flagged in the contract. It would be wrong based on a slight lack of contractual clarity to ascribe a motive of discrimination when the facts overwhelmingly show why the role ended and that was due to AIM funding ending.

It is contended by the Complainant that the school discriminated against her when she informed the lead supervisor that based on being pregnant, she was limited in how she could meet the needs of a particular child, based on medical advice about what type of work she could do when pregnant. The Supervisor stated that it was quite normal for an employee not to do any work that she felt was not suitable while pregnant.  The Complainant was not victimised, she was part of an experienced team where physically demanding work would be picked up by other experienced colleagues, section 74(2) of the Act states:

(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.

No evidence has been presented that would ground a claim for victimisation, a discussion about a child with difficulties does not meet the threshold of a complaint. It is also the case that there was no issue with the Complainant limiting what work she was able to do based on being pregnant.

There are 3 complaints before me: Discrimination on the ground of gender, family status and victimisation. It is not entirely clear if CA-00062738-01 includes family status or not. I have inferred that CA-000062738-01 included a complaint under family status. All matters before me have been heard and reasons given for finding that the Complainant was not discriminated against on the grounds of gender, family status or meets the legal test of victimisation defined under the Act.

CA-00062738-01: It is alleged that the “Claimant was not facilitated in her return to work and was given notice of dismissal during her maternity leave. Claimant was treated less favourably by her employer owing to her gender”.

The Complainant’s employment could not be facilitated in a return to work as the funding for this role ended, when the funding allocated under the AIM scheme ended when the child left the school who was approved for that funding. I find that the Complainant was not discriminated against on the ground of gender and/or family status and I find that the Respondent has proven on the balance of probabilities that the employment ended arising from the ending of AIM funding. The complaint is not well founded.

CA-00062738-002:  It is alleged that the Claimant was dismissed due to pregnancy and due to availing of maternity leave. The Complainant’s contract did not end due to pregnancy and due to availing of maternity leave. I find that the Complainant was not discriminated on the ground of gender, and I find that the Respondent has proven on the balance of probabilities that the employment ended arising from the ending of AIM funding. The complaint is not well founded.

CA-00062755-001: It is alleged that the Claimant was victimized for raising concerns in relation to the actions of a particular student. The Act at section 74 defines victimisation as:

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 dismissal in this case did not arise because of any concern raised by the Complainant about her capacity to work with a child while pregnant. The termination of the contract solely arose due the cessation of AIM funding when the child who attracted that funding left the school. That meant the funding also ceased. The Factual Matrix overwhelmingly supports that conclusion. The complaint is not well founded.

The Complainant relies on technical omissions in contract construction and while there may be improvements made, the contract was abundantly clear that the Complainant’s role was conditional on funding and the number of children at the school.

It cannot be credibly maintained that raising a concern about one child in turn gave rise to adverse treatment when it is so clear that the ending of AIM funding gave rise to the termination of the contract. I find that the Complainant was not victimised.

The Complainant was not discriminated against on the ground of gender and/ or family status and/ or victimised.

The complaints are not well founded.

Discrimination-Gender-Family Status -Victimisation.