Complainant

Respondent

Parties

Bianka  Nagy

Primark Limited Penneys

Representatives

Aaron Shearer BL instructed by Niall Breen & Co. Solicitors

Michael McGrath Ibec

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-00063536-001

17/05/2024

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

CA-00063536-002

17/05/2024

The Complainant commenced employment with the Respondent on 19 September 2022 as a Temporary Team Manager and was paid €45,864 per annum. She stated that she was discriminated against by the Respondent when they decided to terminate her employment on 30 March 2023 because she was pregnant.

The Complainant commenced her employment on 19 September 2022 as a Temporary Team Manager with an end date of 19 September 2023. The purpose of the contract was to provide cover during a period of absence for a colleague, a Department Manager, who had been approved a career break for 1 year. The colleague extended her career break by 6 months and in turn the Complainant’s contract was extended and a new end date was agreed of 30 March 2024.

She informed the Store Manager Vincent Cassidy in October 2023 that she was pregnant.

On 6 March 2024, the Complainant met with Mr Cassidy because she had a pregnancy related illness and she wanted to give him a medical certificate to cover the period that she was off from 1 to 11 March 2024. At the meeting, Mr Cassidy informed her that the Respondent intended to terminate her employment at the end of the month because they would be looking for a new Department Manager to backfill the position of the Department Manager who was not returning from her career break. When the Complainant asked him if any of the existing Team Managers would be filling the new Department Manager role, he stated that he did not believe that any of them wanted to apply for it and that it would have to be advertised externally. He further stated that there would have to be an internal promotion for her temporary role to be made permanent and also added that due to an internal restructuring, they were going to lose a Team Manager position.

The Complainant stated in her evidence that she did not apply for the Team Manager roles advertised on 6 December 2022 on 28 February 2023 because she was told not to do so on the basis that she would get the permanent role if the Department Manager on career break chose not to return.

The Complainant commenced employment with the company on 19 September 2022 as a Temporary Team Manager with an end date of 19 September 2023. The purpose of the contract was to provide cover during a period of absence for a colleague in the role of Department Manager who had been approved a career break for 1 year. The colleague extended her career break by 6 months and in turn the Complainant’s contract was extended and a new end date was agreed of 30 March 2024. Her role was of a temporary nature and was dependent on the duration of the other employee’s career break. The purpose of the Complainant’s contract was to provide cover during the career break.

In January 2024, the Complainant spoke to P&C Manager, Ms Bronagh Schiavone in relation to her temporary contract and its expected end date. Ms. Schiavone informed the Complainant, that the manager whom she was employed to provide cover for while on a career break, had committed to confirming by 1 March 2024 if she was returning to work. Ms. Schiavone further informed the Complainant that if the manager returned to her role, that the purpose of her contract would cease and therefore the Complainant’s contract would end. Alternatively, should the colleague inform the company that she was not returning from her career break and was leaving the company, a Department Manager role may subsequently be advertised and depending on who was successful it was possible that there may be a Team Manager role available in the store. Ms. Schiavone informed the Complainant that if there was a vacancy for any such role, in the store at some point in the future that she would need to apply through the normal procedure, namely that she apply through ‘Primark jobs’. The Complainant suggested to Ms. Schiavone that she would not be considered for the role as she was pregnant. Ms. Schiavone explicitly informed her that would not be the case and assured her that the fact she was pregnant would have no negative impact on any application. Ms. Schiavone recommended that the Complainant should sign up to ‘BrassRing’ and set up alerts for the store. ‘BrassRing’ is the Respondent’s recruitment site.

The Respondent was informed on 28 February 2024 by the colleague on career break that she was not returning to work and was resigning. The Complainant was informed of this verbally by Ms Schiavone in the first week of March. The Complainant was also informed that her contract would terminate as agreed at the end of March.

On Friday 22 March 2024, Mr Vincent Cassidy, Store Manager, met with the Complainant to confirm that her date of termination would be 30 March 2024 as per the previous extension. Mr Cassidy provided the Complainant with written confirmation of same. Mr Cassidy also explained to the Complainant that due to the revision of the Respondent’s management structure, there was no vacant Team Manager role and they would be looking to backfill the Department Manager role. He explained to the Complainant that he was unsure if any current Team Managers would apply for the role of Department Manager as at that stage no one internal had applied for the opened vacancy. With no-one potentially stepping up to Department Manger internally this would have meant there was no Team Manager role available. Mr Cassidy advised, as Ms. Schiavone had done, that the Complainant sign up for job alerts through Primark Jobs.

Due to the colleague not returning from her career break, in addition to another Department Manager resigning a job prior to this, thereby bringing the store in line with their proposed new structure, a Permanent Department Manager was then advertised. The Permanent Department Manager role was advertised publicly on 7 March 2024 until 21 March 2024. There were initially no applicants who applied for this role despite it being raised locally at management meetings, when the Complainant was in attendance. This advertisement was then extended by a further 5 days until 25 March 2024 and following a recruitment process an internal colleague was appointed into this role. The person commenced this role on 15 April 2024. The internal colleague had held a permanent Team Manager role in the store. This then required the role of Permanent Team Manager to be advertised for backfill. The role was advertised publicly on 9 April 2024 until 22 April 2024 and was further extended until 2 May 2024. The Complainant, despite being advised to sign up to notification of vacancies on two occasions while employed, and also being reassured that her pregnancy would have no impact on her ability to apply for or be considered for any roles, did not apply for this role.

As well as failing to apply for the Team Manager role that was advertised in April 2024, the Respondent also highlighted that during the Complainant's temporary contract, two other permanent Team Manager positions became available, which she did not apply for. Specifically, one position was advertised on 6 December 2022, while another opened on 28 February 2023, and closed in March 2023.

Discrimination:

Pregnancy-related discrimination is discrimination on the ground of gender. Section 6(2A) of the Employment Equality Acts 1998-2015 (the “EEA”) provides:

“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.”

Burden of Proof:

Section 85A of the EEA provides for the allocation of the probative burden between a Complainant and a respondent as follows:

“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.”

In Mitchell v. Southern Health Board [2001] ELR 201, the Labour Court held:

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

It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the Respondent to prove that there is no infringement of the principle of equal treatment.”

In Melbury Developments Ltd. v. Valpeters [2010] 21 ELR 64, the Labour Court found that “mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”.

In Teresa Cross (Shanahan) Croc’s Hair and Beauty v. Helen Ahern, EDA 195 (the “Cross Case”), the Labour Court held:

“It is abundantly clear from these [Court of Justice of the European Union] authorities, and from the legislative provision of the European Union, that women are to be afforded special protection from adverse treatment on account of their condition, from the commencement of their pregnancy until the end of their maternity leave. The entitlement to that protection is to be regarded as a fundamental right within the legal order of the Union which the Courts and Tribunals of the Union must vindicate within the limits of their jurisdiction. It seems equally clear that where a pregnant woman is treated adversely because of her condition during this period of special protection the employer bears the burden of proving, on cogent and credible evidence, that such treatment was in no sense whatsoever related to her pregnancy. This is a matter that the Court will consider further in addressing the application of the burden of proof in cases such as the instant case.”

As noted in Chapter 4.154 of “Employment Equality Law” 2nd ed. (Bolger, Bruton and Kimber):

“It is now well established that the fact of pregnancy is sufficient in itself to shift the burden of proof to the employer, once the applicant has established less favourable treatment. It is then for the respondent employer to prove that the less favourable treatment was on not on grounds of the pregnancy.”

Findings:

While there was a dispute in evidence between the Complainant and the Store Manager as to what date the meeting between them occurred, it was not undisputed that in March 2024, the Complainant became aware that the Department Manager, for whom she was covering during a career break, would not be returning to the Respondent. Had the Department Manager decided to return, the Complainant’s contract would have been terminated, as the Department Manager would have resumed her previous role. Given the prolonged uncertainty about whether the Department Manager would return—which persisted until she clarified her intentions—and the resulting uncertainty about the availability of a position for her, I find it difficult to understand why the Complainant, employed as a Temporary Team Manager from 19 September 2022, did not apply for one of the permanent Team Manager roles advertised on 6 December 2022 and 28 February 2023, when she was still employed by the Respondent.

Even if I accept the Complainant's evidence that the meeting with the Store Manager occurred on 6 March 2024, rather than 22 March 2024 as the Store Manager claimed, it was undisputed that the Team Manager who successfully applied for the vacant Department Manager role—created due to the decision of the Department Manager on career break not to return—did not submit her application for the position until 25 March 2024. It was also undisputed that the subsequent vacancy, arising from the Team Manager's promotion to the Department Manager role, was advertised in April 2024. I do not find it reasonable that the Complainant felt so “betrayed” by the termination of her employment on 30 March 2024 that she chose not to apply for this vacant Team Manager role. This is especially the case given the lack of evidence from the Complainant to rebut the Respondent's evidence that all permanent vacancies are advertised centrally, require a formal application through their internal Brassring system, and cannot be secured without undergoing the recruitment process.

Considering all of the foregoing, I find that the Complainant was not treated any less favourably than other employee was or would have been in the same circumstances, and that she has therefore failed to establish a prima facie case of discrimination.

CA-000635361-001:

As the Complainant failed to establish a prima facie case of discrimination, I find that she was not discriminated against.

CA-00063536-002:

This complaint was withdrawn.