Complainant

Respondent

Parties

Roisin  Riordan

Health Executive Service

Representatives

Jade Wright, Sean Ormonde & Co. Solicitors

Kevin Little, HSE Employee Relations Manager

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-00064434-001

01/07/2024

The Complainant stated that she was discriminated against by the Respondent when she was not permitted to defer a course that she had successfully applied for because she was on maternity leave.

In 2023, the Complainant applied and progressed through an interview and screening process with the Respondent recruitment team for a place on a postgraduate mental health nursing course, in conjunction with UCD. On 26 March 2024, the Complainant received her contract from the Respondent and duly signed and returned it, accepting her position.

On 3 April 2024, the Complainant informed the Respondent that she was on maternity leave presently and wanted to heed the advice of her GP and defer the course due to her recent pregnancy and birth. The Respondent replied, advising that the option to defer was not available under any circumstances. As the Complainant was taking her maternity leave and could not start on the contracted date, the Respondent unilaterally retracted the offer on 18 April 2024 (despite the Complainant having both a signed contract and being entitled to the same maternity leave provisions as all HSE staff).

The Complainant stated that she was discriminated against for exercising her right to take a period of maternity leave having been unilaterally removed from the course and not permitted to defer. She was effectively forced to choose to take up her statutorily protected maternity leave or retain a position she had signed and confirmed.

The Respondent stated that a Higher Diploma in Mental Health Nursing Programme was advertised on 22 November 2023 for which the Complainant applied and in respect of which she was successful. A contract of employment was issued on 26 March 2024 with a start date of 15 April 2024.

On 3 April 2024, the Complainant advised the Respondent that she was currently on maternity leave and sought a deferral of her place. The Respondent subsequently advised her that, in line with the guidelines set out in the recruitment documentation, the option to defer the programme was not available and requested that the Complainant confirm how she wished to proceed. Due to not receiving a reply to their correspondence, a reminder e-mail was sent to the Complainant on 9 April 2024 asking her if she wished to proceed with her participation on the programme as the Respondent needed to update the service/University College Dublin on the number of candidates who would commence.

On 10 April 2024, the Complainant advised that as there was no offer of a deferral or accommodation for her maternity leave, she would be referring the matter to her solicitor.

On 18 April 2024, a retraction e-mail was issued to the Complainant withdrawing the offer as she was not in a position to commence on the agreed start date and, therefore, did not fulfil the terms of her contract.

Preliminary Matter

The Law:

Definition of an Employee and Employer:

Section 2(1) of the Act gives the following definition of an employee and an employer:  

"employee", subject to subsection (3), means a person who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment and, where the context admits, includes a member or former member of a regulatory body, but, so far as regards access to employment, does not include a person employed in another person’s home for the provision of personal services for persons residing in that home where the services affect the private or family life of those persons;]

“employer”, subject to subsection (3), means, in relation to an employee, the person with whom the employee has entered into or for whom the employee works under (or, where the employment has ceased, entered into or worked under) a contract of employment;

Findings:

In deciding if I have jurisdiction in respect of this complaint, I must have regard to the definitions of “employee” and “employer” set out above.

I note firstly that while the Complainant was issued with her contract on 26 March 2023, the start date on the document was 15 April 2024. I further note that it was clear from the Respondent’s correspondence of 3 April and 9 April 2024 that a deferral of the offer was not possible. The Complainant noted this position in her email of 10 April 2024, stating that “As there has been no offer of deferral or accommodation for my maternity leave, I will be referring the matter to my solicitor“ to which the Respondent replied on 10 April 2024 and once against clarified that a deferral was not possible. I also noted that an email was sent from UCD, the course provider, to the Respondent on 15 April 2024, wherein it was stated that the Complainant has “made contact to say she won’t be pursuing the programme”

While I noted that the Complainant stated she did not consider the offer to have been withdrawn until this was formally confirmed by the Respondent on 18 April 2024, three days after the course had started and by which stage she alleged that she was an employee, I am satisfied that both sides made their positions very clear in the correspondence from 3 April to 10 April 2024 as set out above and note that the Complainant did not attend the course when it began on 15 April 2024.

Considering all of the foregoing points, I find that the Complainant did not enter into works on 15 April 2024, which was the start date on the contract of employment provided to her on 26 March 2024, and that she was therefore not an employee of the Respondent.    

As I have found that she was not an employee, I do not have jurisdiction to hear this complaint.

I find that I do not have jurisdiction to hear this complaint for the reasons set out above.