Complainant

Respondent

Anonymised Parties

A Complainant

Board of Management of a Named National School

Representatives

Sean Ormonde & Co. Solicitors

Cara-Jane Walsh BL, instructed by  Ronan Daly Jermyn Solicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00061683-001

20/02/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00061683-002

20/02/2024

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

CA-00056898-001

29/05/2023

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

CA-00058715-001

07/09/2023

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

CA-00058715-002

07/09/2023

The complainant states that she was employed by the respondent as an SNA/School Administrator and commenced employment on 22 October 2018. The complainant states that she also worked as a school bus escort which involved accompanying children with additional educational needs from home to school and vice versa, morning and evening.

The complainant states that the respondent offered her a permanent 26 hour contract which would be paid by the Department of Education. The complainant claims that this offer was made to her on 30 June 2022 and was made verbally. The complainant states that on 5 July, she accepted the permanent role via text message sent to Ms MK secretary of the respondent. The complainant states that she went on maternity leave on 10 July and her child was born on 11 July.

The complainant states that her maternity leave was due to expire on 5 March 2023. She states that on 3 February 2023, she received a text from the Principal requesting a meeting on 8 February. The complainant attended the meeting and was informed that the respondent was giving the 26 hour permanent contract promised to the complainant, to the person covering the complainant’s maternity leave Ms EE. The complainant states that this came as a great shock to her. The complainant states that she retained notes of the meeting. She states that the Principal suggested that the complainant return to work and be paid with a secretarial allowance, caretaker’s allowance and cleaner’s allowance to essentially bump up her hours and wages.

The complainant states that she queried why Ms EE was being given the 26 hour contract in place of her and that the Principal responded that Ms EE was a “single income household” and was struggling financially inferring that she needed the role more than the complainant. The complainant states that she vehemently objected to this, stating that the candidate should not be determined on the basis of financial means and given that the role had already been offered to and accepted by the complainant.

The complainant states that she left the room to check the SNA schedule to see who had been allocated hours. When she retuned to the meeting, the Deputy Principal was also present. The Principal offered the complainant 16 hours SNA in the Lilac room. The Deputy Principal suggested that the complainant could also pick up hours as a bus escort, however the complainant declined same.

The complainant submits that another member of staff Ms LF working as an SNA on a casual basis like the complainant was given a permanent position without interview in that year also.  

The complainant states that the uncertainty surrounding her return to work and the blatant disregard for her by the respondent took its toll on her. The complainant states that she was certified as unfit to work on 5 March 2023.

The complainant submits that the respondent continued to victimise the complainant in failing to make efforts to return her to work despite the school term recommencing in August 2023. It was submitted that the respondent did not communicate with the complainant about her return to work or check on her well-being. The complainant states that the respondent emailed her in September requesting sick certificates to explain her continued absence. The complainant states that she responded on 22 September to state that she did not submit sick certificates because she was not sick. The complainant further states that no one had communicated to her about the new semester; she was not included on the roster nor was she provided with the school calendar. The complainant asserts that if the respondent thought she was genuinely unwell that they would have contacted her before now.

The complainant states that the Principal responded to her on 5 October 2023 outlining that at no point did the complainant indicate her ability to return to work. The complainant states that there was an insinuation that the onus was on the complainant to return herself to work. The complainant states that this runs contradictory in circumstances where the Principal repeatedly refused to indicate what role the complainant was to return to as requested by the complainant on numerous occasions in emails.

The complainant is alleging that she has been discriminated against contrary to the Employment Equality Acts on grounds of gender and family status. The complainant states that the respondent informed her that she was to be given a 26 hour permanent contract. The complainant then went on maternity leave and was subsequently informed, whilst still on protective leave, that the 26 hour permanent contract was in fact being allocated to the person covering her maternity leave. The complainant states that when she challenged this, she was told that she was never acting in the capacity of SNA and her performance and role over 5 years was questioned and challenged.

It was submitted that the respondent refused to address the complainant’s queries in relation to the 26 hour contract and the Principal failed to even acknowledge it. The complainant states that the respondent further caused stress to her by refusing to clarify the position or role that the complainant would be returning to which caused the complainant to be certified as unfit to work as a result of stress.

While the respondent informed the complainant that a procedure and interview process had to be followed for such a permanent contract to be allocated, the complainant is aware of other members of staff in similar roles to her that were made permanent without any such process being adhered to.

The complainant submits that she has raised a prima facie case of discrimination and that it now falls to the respondent to rebut same with cogent and credible evidence.

Victimisation Complaint

The complainant states that she was initially victimised by the respondent as a result of raising an issue with her employer about the sudden change in her role and the opportunity of the 26 hour contract being taken from her in favour of her maternity staff cover. The complainant further states that she was never returned or offered to return her to the position held prior to going on maternity leave.

The complainant states that she was further victimised and penalised when she lodged WRC complaints against the respondent with regard to the manner in which she was treated. It was submitted that the respondent failed to return the complainant to work when the school term recommenced in August 2023 and has made no genuine efforts to progress her return to work.

In conclusion, the complainant states that she was offered the 26 hour SNA contract by an agent of the respondent, the Principal. She states that the offer was rescinded when the complainant was on protective leave without the complainant’s knowledge and consent. The complainant states that she was subsequently not returned to work to the role she held prior to protective leave and in fact when she did return, her prior duties and responsibilities were stripped back and she was totally isolated resulting in her being unable to return.

The complainant states that no efforts were made to return her to work in the new school year in August 2023 while the respondent attempted to transfer the onus onto the complainant to return herself to work and nonsense excuses being proffered by the respondent about construction works going on in the school. The complainant states that she was singled out purposely as the only staff member not to be sent a roster or school calendar in the weeks before the new school term. The complainant states that it was only when she lodged subsequent complaints that the respondent thought of the complainant as an afterthought out of necessity from a legal defence perspective.    

The respondent states that the complainant commenced employment with the school undertaking general administration duties, through a FAS scheme on 22 October 2018. It was submitted that she worked closely with the part-time secretary Ms MK who also holds a Department of Education SNA contract - 26 hours. Both administration/secretarial positions are paid directly by the Board of Management through grants provided by the Department of Education. The respondent states that the complainant also worked as a school bus escort, which involved accompanying children with additional educational needs from home to school and vice versa, morning and evening. The respondent states that the complainant was paid separately for this role which is also paid out of a Department of Education grant. It was submitted that she worked for the respondent in this capacity up to her maternity leave in July 2022.

The respondent states that the complainant completed her administration duties at a ledge workspace in the classroom and it was acknowledged that she assisted the class teacher with pupils in the classroom. The respondent states that one pupil supported by the complainant has special needs however this pupil did not meet the criteria for Department of Education SNA support. The respondent submits that it should be noted that the assessment of education needs and designation of SNA support is a very prescribed process conducted through the HSE. It was submitted that SNA roles are paid by the Department of Education through an electronic system called the OLCS and the Department has specific rules regarding the recruitment and appointment of SNAs under Circular 0051/2019.

The respondent submits that it is noteworthy that the complainant was never designated or paid as a Department of Education SNA, with the exception of times where she substituted for SNA’s out on sick leave. This amounted to payment through OLCS of 20 SNA cover days over the complainant’s employment with the school. The respondent states by way of further background, roles for all staff both teaching and non-teaching are very fluid. It states that as an example, teachers sweep and wash floors and all staff contribute to the upkeep of the school and organise fundraising initiatives. This allows extra funds to be allocated to support the needs of pupils, such as aiding parents with the costs of educational assessments for pupils buying non grant aided equipment and resources and paying for extra staff support.

The respondent submits that the complainant has indicated that on her return from maternity leave she was supposed to be promoted into a permanent role as an SNA but that the role was instead given to her maternity cover. The respondent states that it refutes this claim of discrimination and does not accept that the complainant was due any promotion or new role on her return from maternity leave. The respondent submits that given the complainant’s employment history outlined above, the respondent was perplexed at her assertion that she was entitled to a Department paid SNA role on her return from maternity leave.

The respondent states that an informal meeting between the complainant and the Principal took place on 8 February 2023 to discuss the complainant’s return to work. The respondent states that at this meeting that the complainant indicated that on her return to work she would be taking up Ms MK’s SNA role. The respondent states that the complainant indicated that she had been offered and had accepted Ms MK’s SNA role prior to going on maternity leave. The respondent asserts that the Principal was shocked at this statement. The respondent states that there was no such role available nor was the Principal aware of any offer having been made in relation to the role. Ms MK was still employed in the role and it was therefore not open. The respondent states that furthermore, even if a permanent SNA role was available, the appointment would need to have been sanctioned by the Board of Management.     

It was submitted that the complainant became very aggrieved in the meeting as to why the role was not available to her on her return and furthermore why her maternity leave replacement had received her contract. The Principal provided clarity that Ms EE was only providing temporary cover for the role due to Ms MK’s absence but that Ms MK still held the role and therefore the role was not available.

The respondent submits that the Principal sought to discuss the complainant’s return to her actual role i.e. the administrative/bus escort role undertaken by her prior to her maternity leave, however she would not be swayed from her position that Ms MK’s SNA hours were hers and she was entitled to same on her return. The respondent states that given the complainant’s level of vehemence and grievance on the issue, the Principal made enquiries there and then as to whether there were any SNA hours that could be provided to the complainant on her return. The Principal ascertained that there were 16 temporary SNA hours available and offered same to the complainant which she could carry out in addition to her bus escort duties. However, the complainant declined this offer on the basis that she already had an offer for permanent hours, being Ms Mk’s SNA role. The meeting concluded without any resolution.

The respondent states that subsequently the Principal sought to clarify over the course of e-mail correspondence requesting when the alleged offer was made, by whom and whether it was made orally or in writing. It was submitted that in an e-mail dated 14 March 2023, the complainant indicated that it was Ms MK who had offered the complainant her SNA hours/role and furthermore that the Principal had agreed to this in June 2022. The respondent states that the Principal was taken back by this assertion. It was the case at a retirement function for the Deputy Principal in June 2022, Ms MK and the Principal had an informal conversation in which Ms MK disclosed that she was thinking of resigning at Christmas 2022 and that the complainant would be a good replacement for her to which the Principal understood this to mean her part time secretarial role. It was submitted that, in any event under no circumstances, did the Principal agree to this. The respondent asserted that by way of context, the Principal had been absent on Critical Illness leave since April 2021 and had only attended the function for a short time given her health condition. She was there as a colleague and was not the designate Principal at the time and therefore had no authority to sanction the arrangement. The respondent submitted that all SNA positions need to be sanctioned by the Board of Management and sent forward to the Diocesan Office and then to the Department of Education before they are confirmed.  

The respondent states that the complainant returned from maternity leave on 24 April 2023 and was still deeply unhappy with the situation and was hostile towards the Principal and other staff members on her return. It was submitted that the Principal sought to ease the complainant’s transition back to work and provided flexibility to the complainant regarding her working hours. The respondent states that the complainant continued to be very aggrieved and could not be turned from her position that she had an entitlement to Ms MK's 26 hour SNA role. It was submitted that the Principal sought to clarify the position with the complainant in writing by email dated 28 April 2023 and indicated that the school would welcome her application should any permanent position become available. The respondent states that the Principal was deeply saddened at the turn of events. She had always had a good working relationship with the complainant and found her to be a very good and diligent worker. Thereafter, the complainant went out on sick leave.

The respondent states that it is not accepted that the complainant’s “old role” changed on her return to work. The role had the same requirements that it had prior to her maternity leave. On her return, the Principal sought to integrate the complainant back to work and was flexible regarding her arrangements. The respondent maintains that the complainant herself signalled a difficulty in undertaking the bus escort role and the Principal said that she would be as flexible as could be, however bus timetables were fixed and furthermore are not set by the school but the Department of Transport.

The respondent states that it is important to note that the role at the centre of this dispute continues to be MK’s role which has not come up for permanent replacement. The respondent received the complainant’s complaint of discrimination in June 2023 and such was the level of desire and willingness to resolve the dispute on the part of the respondent, they immediately consented to mediation.

The respondent submits that the onus of proof is on the complainant to establish a prima facie case of treatment contrary to the Employment Equality Acts which provide, at Section 85A that facts must be “established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him/her it is for the respondent to prove the contrary”.

The respondent submits that the complainant has not met the threshold in relation to establishing discrimination on the grounds of her gender and family status. The complainant’s case was that she suffered pregnancy discrimination on her return to work as the role she had been offered and accepted was given to her maternity leave cover.

The respondent states that the complainant gave evidence on her own behalf and there was no witness in attendance to support her claim. It is notable that the former school secretary Ms MK whom the complainant maintained had the authority to offer her the SNA Department of Education 26 permanent hours, which she accepted, was not present to provide corroborative evidence in this regard and is therefore hearsay. The respondent invites the Adjudication Officer to draw adverse inferences from this, particularly where the complainant gave such evidence that Ms MK took a career break for the 2023/2024 school year due to the complainant’s within complaints to the WRC. It is submitted that this establishes the complainant and Ms MK remained in ongoing communication with each other and maintained a good relationship and thus it is peculiar that she did not attend at the hearing of the within action to support the complainant. It is also submitted that this demonstrates that the complainant and Ms MK had reached an agreement amongst themselves as to how and when Ms MK’s SNA Department of Education 26 permanent hours, would be handed over by her to the complainant, without the knowledge and authority of the respondent. 

The respondent states that the complainant provided no supporting evidence in respect of her comparator, Ms LF; in particular no evidence was given as to when Ms LF is alleged to have bypassed the process and been given Department SNA hours by the respondent, nor was there evidence as to whom on behalf of the respondent is alleged to have given these hours to Ms LF. There was no evidence given as to how Ms LF differs from the complainant in respect of her gender and family status.

The respondent states that the complainant seeks to rely on an inference that the Principal  authorised Ms MK to liaise with the complainant in relation to the role in question.The respondent respectfully submits that the Adjudication Officer cannot and should not accept this position as there is direct contradictory evidence presented by the respondent. Notwithstanding that the Principal was not present at the hearing of the action, owing to significant illness, to give vive voce evidence, the respondent states that it submitted documentary evidence of emails sent by the Principal at the relevant time which the complainant accepted she received. The respondent submits that this is crystal clear evidence that the Principal did not permit Ms MK to offer the SNA hours to the complainant and was a stranger to such agreement being in existence. The respondent points to an email dated 3 March 2023, sent by the Principal to the complainant, wherein the Principal expressly states:

“Concerning your suggestion that you were offered and accepted 26 Department paid hours prior to commencing your maternity leave, which you suggest are not now being assigned to you, you might confirm when that offer was made, by whom it was made and whether it was accepted orally or in writing by you.”

The respondent further points to an email dated 28 April 2023 sent by the Principal to the complainant, wherein the Principal states:

‘MK [my emphasis] did inform me of her intention to resign at Christmas 2022. MK, in addition to her SNA job was also in receipt of payment for administrative duties. She did state that she intended to do a handover with you prior to her resignation. However, the handover was only in respect of those administrative duties. Unfortunately, MK appears to have informed you that the SNA role that she held would be handed over to you. This cannot happen. It is neither in MK’s remit, or my remit as Principal to do this.

… I did state that EE [my emphasis] was fulfilling the 26 hour SNA role at that time as a substitute for MK.  I also stated that a handover of an SNA role to you was not up for discussion. In fact, at that time there was no job vacancy. Accordingly, there was no agreement that you would get this position. There is no question of me failing to honour any agreement….

I would like to formally reiterate that there was no agreement that you would get the SNA position when and if it became available. 

The respondent submits that the factual matrix which the complainant relies upon to pursue this complaint of discrimination cannot stand. It is the respondent’s firm position that the complainant was not offered the SNA Department hours by Ms MK with the school’s knowledge and authority prior to the complainant commencing her maternity leave. The complainant submitted copies of text messages which were sent between her and Ms MK which she maintains establishes that she accepted the offer of the SNA Department hours. The respondent respectfully submits that this is a complete nonsense on the part of the complainant; how could it be reasonably understood that Department of Education hours could be formally accepted and binding via the sending of a text message to the school secretary without the Board or Principal’s knowledge and authority. It is submitted that the actions of the Principal on the complainant’s return to work, in not honouring this alleged agreement, cannot and do not amount to discrimination.

The respondent submits that the complainant has failed to meet the test as set down in Valpeters v Melbury Developments Limited[1]in that she has not established facts of sufficient and credible significance to raise the presumption of discrimination. It is submitted that it is simply not credible to suggest that the Principal authorised Ms MK to offer the complainant permanent SNA hours, during the course of a very brief chat in June 2022 whereby the Principal was in attendance as a guest, on the retirement of a colleague, during the course of her Critical Illness absence and furthermore where she had not occupied the role of Principal since April 2021 - some 14 months earlier.

The respondent relies upon the decision of Employee v Employer2, wherethe complainant alleged that he had been discriminated against in the course of his employment and subjected to a hostile working environment. When asked about specific incidents related to an allegation of discrimination, the complainant was unable to offer any evidence and contended that he had been treated so badly that discrimination could be the only rational explanation. In reaching the determination, the Adjudication Officer stated that the allegation of discrimination presented in the complaint was not based on established facts but rather it was based on the complainant’s interpretation of events and assumptions regarding the respondent’s motives. The WRC therefore concluded that the complaint was not well founded, and the complainant had not been discriminated against.

It was submitted that a similar case to Employee v Employer is being progressed by the complainant in the within case. She is offering up her interpretation that Ms MK offered her departmental hours with the school’s permission and subsequently the Principal resiled from this agreement owing to the complainant being on maternity leave. These are not established facts but rather based on the complainant’s own assumptions which are entirely incorrect.  Further, it is the respondent’s position that Ms MK’s contracted hours were not filled by the complainant’s maternity leave cover, Ms EE as alleged by the complainant; rather Ms EE was covering Ms MK’s hours whilst she was out on sick leave. This is supported by the Principal’s email dated 28 April 2023 sent to the complainant, wherein the Principal states:  “… I did state that EE [my emphasis] was fulfilling the 26- hour SNA role at that time as a substitute for MK.”

The respondent states that this position was also supported by the evidence of Ms CB, teacher and member of the Board of Management, in that, the hours which the complainant says she was offered and accepted were never available. The respondent asserts that this is another indicator that the complainant is pursuing this claim based, not on fact, but her own interpretation of the situation. Furthermore, the respondent submits, given the ongoing communication between Ms MK and the complainant that it is not credible for the complainant to assert in evidence that she was not aware that Ms MK was on sick leave at this time.    

Finally, the respondent denies that the complainant was returned to a lesser or different role post maternity leave. It states that the complainant is incorrect in her view that she was ever engaged as a formal SNA prior to her maternity leave. She was employed as a general administrator and bus escort and was paid by the Board of Management for the administration duties and paid via Department of Education grant for the bus escort hours. It was submitted that the Principal sought to assure the complainant in this regard by way of her email dated 28 February 2023 wherein she states:

“… The informal meeting we had the previous day was to assure you that your escort and secretarial hours are still available to you on your return from maternity leave.”

The respondent states that it is apparent that there was some disagreement as to this and the contemporaneous communication between the Principal and the complainant outline that they were working through the uncertainty the complainant was expressing at this time. In particular, the Principal provided a detailed response to the complainant by way of the aforementioned email dated 28 April 2023.The respondent states that the complainant went on certified sick leave after receipt of this email, being four days following her return to work from maternity leave and did not return thereafter.

The respondent denies that the complainant’s claim meets the threshold for raising a prima facie case whatsoever under the alleged ground of discrimination by reason of gender or family status.

Victimisation Claim

The respondent states that the complainant maintains that she was subject to discrimination and victimisation in that she was not contacted about the return to the workplace for the academic year 2023/2024 and she was not returned to the same role.

Section 74(2) of the Employment Equality Act states inter alia:

“(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 –

i.       A complaint of discrimination made by the employee to the employer

ii.     Any proceedings by a complainant…”

The respondent submits that in order to discharge the burden of proof as set out in Section 85A of the Employment Equality Acts, the employee must demonstrate that there is a causal connection between their taking of proceedings and the adverse treatment by the employer.

The respondent relies on the Labour Court decision in the Department of Foreign Affairs v Patricia Cullen [EDA116] which held that in respect of the definition of S74(2):

This definition is expressed in terms of there being both a cause and an effect in the sense that there must be a detrimental effect on the complainant which is caused by him or her having undertaken a protected act of a type referred to at paragraphs (a) to (g) of subsection (2). If either the cause or the effect is missing there can be no finding of victimisation within the statutory meaning´

The respondent’s position is that there was an oversight on its part as to why the complainant was not placed on the school timetable for the academic year commencing 30 August 2023. The complainant had gone on certified sick leave in April 2023 and provided consecutive sick certificates, the last of which expired on that last day of the 2022/2023 academic school year. At this point, Ms CB, teacher and member of the Board gave clear evidence that the school was in disarray during the Summer holidays as there were significant building works taking place on site, which commenced as soon as the school closed for the Summer break. The respondent was of the belief that the complainant remained on sick leave at this point in time. Ms CB gave evidence that she assisted the Principal at the start of the academic year when the school realised the complainant had not submitted sick certificates. She outlined that they reached out to their solicitor to ask if it was appropriate to contact the complainant seeking a sick certificate. Thie respondent submits that this is evidence that there was an oversight on the school’s part and points to various correspondence in this regard.

The respondent states that the complainant’s email of the 22 September 2023 was the first indication that the school was aware that she was ready, fit and able to return to school and it was not the case that the Board was “well aware” and took an active decision to deny the complainant her rightful return to work.

In conclusion the respondent submits that it is denied absolutely that the school purposefully excluded the complainant from the school. Moreover, the respondent strenuously denies that any such alleged exclusion was as a result of the Principal or the Board taking an active decision to do so because of the complainant’s WRC claim which she lodged in May 2023.

The respondent submits that the burden of proof has not shifted to the respondent in circumstances where there is no causal link between the WRC complaint of May 2023 and the action of not returning the complainant to school. The respondent states that the within complaints are not well-founded.

In reaching my decision I have taken into consideration all the submissions, oral and written, made to me by the parties as well as the evidence given by the witnesses at the hearing. 

Section 85A of the Employment Equality Acts, sets out the burden of proof necessary in claims of discrimination. It provides "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 the case of Melbury Developments and Valpeters the Labour Court stated in relation to Section 85 A as follows:

"Section 85A of the Act 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.

It requires the complainant to establish, in the first instance, a prima facie case of discrimination. It is only when she has discharged this burden to the satisfaction of Adjudication Officer that the burden shifts to the respondent to rebut the prima facie case of discrimination raised.

001 Complaint

Based on the evidence heard, I note that the respondent’s position is that the complainant was not offered the 26 SNA Department of Education hours by Ms MK with the school’s knowledge and authority prior to the complainant commencing her maternity leave.  The complainant submitted copies of text messages which were sent between her and Ms MK which she maintains establishes that she accepted the offer of the SNA Department hours.

The respondent submitted that it was not credible to suggest that the Principal authorised Ms MK to offer the complainant her permanent SNA hours, during the course of a very brief chat in June 2022 whereby the Principal was in attendance as a guest, on the retirement of a colleague, during the course of her Critical Illness absence and in circumstances where she had not occupied the role of Principal since April 2021, some 14 months earlier.

While the complainant stated that her colleague Ms LF had bypassed the process and had been given Department SNA hours by the respondent, there was no evidence presented to substantiate this assertion.  

The witnesses for the respondent stated in testimony at the hearing that Ms MK’s contracted hours were not filled by the complainant’s maternity leave cover, Ms EE as alleged by the complainant but that Ms EE was covering Ms MK’s hours whilst she was out on sick leave.

In addition Ms CB, teacher and member of the Board of Management stated in her testimony at hearing that the hours which the complainant says she was offered and accepted were never available.

The witnesses for the respondent, in their testimony, stated that Departmental Circular 51 sets out a prescribed procedure which is in place for the allocation of a 26 hour SNA permanent contract such as the one at issue with in the within case. In this regard they stated that an interview process is required and thereafter it is necessary to have a review and sanction of the successful candidate by the Board of Management. 

In the circumstances of the within matter, I do not find it plausible that the 26 SNA Department hours could be formally accepted and binding in circumstances where the complainant sent a text message to the school secretary Ms MK without the Board of Management or the Principal’s authority.   

Based on all the evidence heard on this matter, I find that there was a misunderstanding/  misinterpretation with regard to the assertion by the complainant that she was offered and accepted Ms MK’s 26 SNA Department of Education hours with the approval of the Principal. It is evident from the correspondence submitted that there was conflict over whether it was the administrative aspect of her duties as opposed to Ms MK’s 26 SNA Department hours. As matters transpired, there was no position available according to two of the witnesses representing the respondent as the 26 SNA Department hours contract did not exist.  

Based on all the evidence adduced in the within matter, I find that the actions of the Principal on the complainant’s return to work, in not honouring the alleged agreement of the 26 SNA Department hours, does not amount to discrimination under the Employment Equality Acts. Accordingly I find that the complainant has not established a prima facie case of discrimination on grounds of gender or family status. This complaint fails.  

002 Complaint

The complainant submits that she was discriminated against, in that, she was returned to a lesser or different role post her maternity leave. The evidence presented by the witnesses for the respondent was that the complainant was incorrect in her view that she was ever engaged as a formal SNA prior to her maternity leave. The respondent submitted that the complainant was employed as a general administrator and bus escort and was paid by the Board of Management for the administration duties and paid via the Department of Education grant for the bus escort hours. The Principal sent the complainant an email dated 28 February 2023 where it stated that her escort and secretarial hours are still available on her return to work.

While there was some disagreement on both sides, based on the contemporaneous communications at the time, the complainant and the Principal were working through the concerns that the complainant had outlined. I note that the Principal provided a comprehensive response to the complainant on 28 April 2023. However the complainant went on certified sick leave 4 days following her return to work from maternity leave.

In all of the circumstances of the within complaint, I find that the complainant has failed to establish a prima facie case of discrimination on grounds of gender and family status on the basis of her allegation that she was returned to a lesser or different role post her maternity leave.  Accordingly, I find that this complaint fails.

003 – Victimisation

Victimisation is defined by section 74(2) of the Act 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.

This section of the Acts is based on Article 11 of the Directive 2000/78/EC on “Equal Treatment in Employment and Education” (The Framework Directive). Both the Acts and the Directive provide that victimisation occurs where a detriment is imposed on a worker “as a reaction to” a complaint or other protected act. The use of the expression “as a reaction to” connotes that the making of a complaint, or other protected act, must be an influencing factor in the decision to impose the impugned detriment although it need not be the only or indeed the principal reason for the decision. The wording of section 74(2) of the Act comports fully with this provision of the Directive. In order to make out a claim of victimisation under the Act, it must be established that (i) the complainant had taken an action of a type referred to at section 74 (2) of the Acts (a protected act), (ii) the complainant was subjected to adverse treatment by the respondent and (iii) the adverse treatment was in reaction to the protected action having been taken by the complainant.  

I note that the complainant was singled out as the only staff member not to be sent a roster or school calendar and was not placed on the school timetable for the academic year in the weeks before the new school term commenced. The respondent failed to return the complainant to work when the school term recommenced in August 2023. While Ms CB of the respondent stated that this was an oversight and there was building works underway at the school and they were very busy at this juncture. I do not find these arguments plausible.

Having heard the totality of the evidence in relation to the claim of victimisation, I find that the complainant has established a prima facie case of victimisation for having lodged complaints of discrimination against the respondent. I find that her non inclusion on the school time table, failure to provide her with the school calendar for the term commencing 30 August 2023 and the respondent’s failure to return the complainant to work for the new school term consisted of adverse treatment and retaliation by the respondent against the complainant for having lodged complaints of discriminatory treatment.   Accordingly, I find that the claim of victimisation succeeds. 

I find that the respondent did not discriminate against the complainant on grounds of gender or family status in her conditions of employment.

I find that the complainant was subjected to victimisation by the respondent. I order the respondent to pay the complainant the sum of €7500 by way of compensation for the distress and effects of the victimisation on the complainant.

Pregnancy discrimination, maternity leave, promotion, victimisation