Complainant

Respondent

Parties

Leanne  McGuinness

Eurotech Renewables Limited

Representatives

Tadhg Boyle Rogers & Byron

Ms. Anna Rosa Raso, ESA Consultants

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-00062255-001

15/03/2024

The Complainant commenced employment with the Respondent on 10th February 2020. The Complainant was a permanent member of staff, in receipt of an average weekly payment of €480. While the Complainant’s date of termination is a matter of dispute between the parties, the Complainant submitted that her employment ended on 9th November 2023.

On 15th March 2024, the Complainant referred the present complaint to the Commission. Herein, she alleged that the Respondent failed to allow her to return to a role she formerly held following a period of maternity leave. In denying the allegation set out by the Complainant, the Respondent submitted that the Complainant was placed on lay-off due to various economic reasons. In this respect they submitted that this decision had nothing to do with the Complainant’s maternity leave and they denied any discrimination as alleged.

While the complaint form alleged that the Complainant suffered discrimination under the grounds of family status only, the submission subsequently received alleged discrimination on the grounds of “gender” and “family status”. Notwithstanding the same, the substance of the Complainant’s allegation, that she suffered discrimination following a period of maternity leave, remained constant throughout the proceedings.

A hearing in relation to this matter was convened for, and finalised on, 27th September 2024. This hearing was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced during the hearing.

Both parties issued extensive submissions in advance of the hearing. Said submissions were expanded upon and contested in the course of the hearing. The Complainant gave evidence in support of her complaint while the Financial Controller and a Director of the Respondent gave evidence in defense. All evidence was given under oath or affirmation and was opened to cross examination by the opposing side.

By submission, the Respondent raised a preliminary issue as to jurisdiction. Given the nature of the same, this will be considered following a summary of the substantive matter.

On 10th February 2020, the Complainant commenced employment with the Respondent. At all relevant times, the Complainant’s role was described as that of “administration manager”.

In January to November 2021, the Complainant completed a period of maternity leave. On her return to work, it was agreed between the parties that the Complainant would work a four-day week, from Monday to Thursday, going forward.

On 5th December 2022, the Complainant commenced a second period of maternity leave. During her absence, her role was filled by a temporary employee. On 13th July 2023 she met with the office manager of the Respondent and informed her that she intended to return to work on 11th September 2023. Shortly before the Complainant’s expected return to work, she received a telephone call from the Director of the Respondent. During this call, the Director stated that he had a new role for the Complainant to return to following her maternity leave. No further details regarding the nature of this role and the duties it entailed were provided on this call.

Thereafter, on 9th September 2023, two days prior to the Complainant’s proposed return to work, the Director issued correspondence to her. Herein, he stated that the Respondent was “unable to bring you back to the office as previously agreed", that he “could not afford to take (her) back at the moment”. The correspondence ended with the Respondent stating that “it was pleasure to work with you…and I regretful (sic) and saddened to have to let you go from the company”. By submission, the Complainant stated that the ordinary and objective meaning of the above correspondence was that the Complainant was dismissed from her role within the Respondent.

On 11th September the Complainant replied, stating that she was shocked by the contents of the letter. She further outlined her belief that she “should have received some warning before I received an email like this” and that it was her understanding that, “if the new role is not there that I am fully entitled to return back to my original post”.

On 12th September 2023 the Complainant spoke with the Director. During this call, the Director confirmed the Complainant’s removal from the workplace. Regarding the previous role, the Director stated that this was not available as it was being fulfilled by another person on a full-time basis.

On 9th October 2023, the Director again corresponded with the Complainant. In the course of this correspondence the Respondent stated that the Complainant had been placed on temporary lay-off. Notwithstanding the same, the Respondent stated that a new position of “service department receptionist” was available.

By submission, the Complainant stated that the Respondent having dismissed her by the correspondence of 9th September, and confirming the same two days later, was now seeking to reclassify her dismissal as a temporary lay-off, with a view to limiting their obvious legal exposure. Thereafter, on 9th November 2023, the Respondent again corresponded with the Complainant. This correspondence again sought to assert that the Complainant’s dismissal was a temporary lay-off and again offered the alternative role to the Complainant. This correspondence created a deadline of 11th November 2023 to respond, failing which, the job would be assigned to another person. Given that the Complainant had no intention of returning to this role, she did not respond to this correspondence and instead referred the present complaint.

By submission, the Complainant stated that suffered a series of discriminatory acts following her second period of maternity leave. Firstly, she was not permitted to return to the role she held prior to the commencement of her maternity leave. When she queried same, she was expressly informed that this arose as a consequence of her former four day arrangement. Given that this arrangement was agreed for the express purpose of allowing the Complainant to attend to her family commitments, she submitted that this was a discriminatory practice. Thereafter, the Complainant received correspondence which clearly intended to dismiss her from her role. While the Complainant viewed herself as being dismissed at this time, the Respondent did not amend her employment status and she was unable to apply for social welfare. Thereafter, presumably on advice, the Respondent resiled form this position and stated that the Complainant was in fact, placed on temporary lay-off. The Complainant submitted that this constituted a further act of discrimination as it was apparent that no other person was placed on lay-off, including the person that was fulfilling her former role. Finally, the Complainant submitted that the Respondent offer of an alternative role was, in fact a demotion, and constituted a further act of discrimination.

By response, the Respondent denied the allegations raised by the Complainant on a factual and legal basis.

The Respondent agreed that the Complainant commenced a period of maternity leave in December 2021. Notwithstanding the same, the Respondent submitted that the Complainant date for return was 5th June 2023, and not that September as submitted by the Complainant. Notwithstanding the same the Respondent accepted that following the maternity leave, and a further period of leave, the Complainant agreed to return to work in September 2023.

Prior to the Complainant’s return to work, she requested that she return to a part-time role. While this could not be accommodated in the Complainant’s then role, it was agreed that the Complainant would return to a customer service role that might permit part-time work.

At the time of the Complainant’s proposed return to work, the Respondent experienced significant difficulties. In evidence, the Director of the Respondent stated that it was strongly anticipated that the Complainant would return to a situation whereby she would be placed on lay-off. In order to mitigate some of the difficulties this would cause the Complainant, the Director issued correspondence to the Complainant stating that she would be placed on lay-off prior to her return. On 13th September 2023, the Respondent spoke with the Complainant and confirmed that there was no work available for her, and that she would be placed on temporary lay-off until the situation improved.

Thereafter, on 29th September 2023, the Respondent notified all employees of the market difficulties being experienced by the Respondent. This correspondence proposed various measures to respond to the same, including salary reductions and temporary lay-offs. On 6th October 2023, three members of staff (excluding the Complainant) were placed on temporary lay-off. 

On 9th October 2023, the Respondent corresponded with the Complainant outlining a new role that aligned with the Complainant’s skills and experience. Given the high regard with which the Complainant was held, this position was offered exclusively to the Complainant. As the Complainant did not see fit to respond to this communication, further correspondence was issued on 12th October and 13th November. No response was received to these communications also.

By submission, the Respondent denied that the Complainant had suffered any form of discrimination. They submitted that the Complainant sought a part-time role on her return to work. In order to facilitate the same, it was proposed that the Complainant be moved a new department. Unfortunately, at the time of the Complainant’s proposed return, the Respondent experienced a significant downturn in business. In response to same, they were obliged to place some employees, including the Complainant, on temporary lay-off. The Complainant was the first person to be contacted regarding a return from lay-off, however did not respond to the Respondent’s communications in this regard. The Respondent further submitted that the Complainant’s former, four day working arrangement was not on the basis of statutory parental leave, and that the Respondent was unaware that the same was being used for family related purposes.

Having regard to the accumulation of the foregoing points, the Respondent submitted that they did not discriminate against the Complainant at any stage, and that her complaint should be deemed to be not well founded.  

At the outset of the hearing, the Respondent submitted that no allegation of discrimination occurred within the cognisable period for the purposes of the present complaint.

In circumstances whereby the complaint was referred on 15th March 2024, the cognisable period for these purposes is 15th September to the date of referral. By submission, the Respondent stated that the Complainant was placed on temporary lay-off on 9th September. Given that this was the discriminatory act alleged by the Complainant, they submitted that same occurred outside the cognisable period and is consequently statute barred for the purposes of the present complaint. They further submitted that the Complainant’s submission was that the contract of employment terminated on this date, and if this position was to be accepted, the employment ended outside of the cognisable period.

In this regard Section 77(5A) of the Acts provides that,

“a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.”

Section 77(6A) provides that,

“discrimination or victimisation occurs—

(i)                  if the act constituting it extends over a period, at the end of the period”

The application of these provisions was extensively considered by the Labour Court in the matter of Ann Hurley -v- Co Cork VEC, EDA 1124. Here the Court stated that,

“Subsection (5) and subsection (6A) of s.77 deal with different forms of continuing discrimination or victimisation. Under subsection (6A), an act will be regarded as extending over a period, and so treated as done at the end of that period, if an employer maintains and keeps in force a discriminatory regime, rule, practice or principle which has had a clear and adverse effect on the complainant…Subsection (5) of s.77 deals with a situation in which there are a series of separate acts or omissions which, while not forming part of regime, rule, practice or principle, are sufficiently connected so as to constitute a continuum.”

This finding was approved by the Supreme Court in the matter of County Louth VEC v Equality Tribunal [2016] IESC 40. Here the Court held as follows,

“At the outset it is important to understand that both ss. 77(5)(a) and (6A) are intended to capture quite different circumstances. Subsection (6A) deals with situations where a single act occurs and where it continues to occur over a lengthy period, such as discrimination based on a regime, rule, practice or principle of an ongoing nature. A term in a contract is a good specific example of the provision’s more general meaning. In such a case the six-month period initiating the process will only start to run when the offending regime or practice ceases; or, put another way, the discriminatory act will be regarded for limitation purposes as having occurred only when such basis has ceased to exist.”

Regarding the instant case, the evidence of the Respondent was that the Complainant was placed on a form of temporary lay-off from 9th September 2023. Thereafter, the Complainant remained on temporary lay-off until at least November 2023, a period of time well within the cognisable period for the purposes of the present complaint. This being the case, it is apparent that the instant matter relates to “a single act occurs and where it continues to occur over a lengthy period” as envisioned by Subsection 6(A) quoted above. In these circumstances, I find that an allegation of discrimination had been raised within the cognisable period for the purposes of the present complaint and I accepted jurisdiction to hear the substantive matter.

In the present case, the Complainant has submitted that the Respondent discriminated against her on the grounds of family status on numerous occasions. In particular, she submitted that following her return from maternity leave, the Respondent failed to allow her to return to the role she held prior to availing of maternity leave. In addition to the same, the Respondent placed the Complainant on lay-off while another employee was fulfilling the role she formerly held prior to her maternity leave. Thereafter, the Respondent offered her an alternative role that, in the view of the Complainant constituted a demotion from her previous role. By response, the Respondent stated that the Complainant was placed on temporary lay-off as a consequence of a difficult financial period experienced by the Respondent. They submitted that this did not occur to the Complainant alone but affected several members of their staff. Regarding the Complainant’s proposed return to work, the Respondent submitted that the Complainant agreed to take an alternative role that might provide part-time hours. They further submitted that the Complainant was offered a suitable alternative role, but simply refused to accept the same.

Subsection (1)(a) of that Section provides that,

“For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances, discrimination shall be taken to occur where:

(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation…which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned”

Subsection (2)(a) prohibits discrimination on the basis that that party is a woman and the other is a man (referred to as “the gender ground”).

Subsection (2)(c) prohibits discrimination on the basis that one has family status and the other does not (referred to as “the family status ground”).

Regarding the burden of proof for such complaints, Section 85 allocates the probative burden between the parties. In particular, Section 85(A)(1) provides that,

“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 matter of Southern Health Board -v- Mitchell [2001] E.L.R. 201 the Labour Court set out the now well-established test in determining whether the probative burden shifts by application of this subsection. In particular, the Court held that,

“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”.

Regarding the present case, the Complainant has alleged that she was not permitted to return to the role she held prior to the commencement of her maternity leave. In this regard her evidence was that she was contacted by the Director of the Respondent in advance of her return to discuss an alternative role on her return. While the Complainant did not initially seem to take issue with such a move, it is apparent that the role she completed prior to her maternity leave was occupied by a person that was hired for that purpose. In such circumstances, any reasonable employer would allow the Complainant to return to this role and discuss the issue of an alternative role with the more recently hired member of staff. Thereafter, prior to the Complainant’s return to work, she was informed that she would her employment would, temporarily at least, cease for a period of time.  This cessation of work continued, with the Complainant being offered an alternative role some months later. In evidence, the Complainant outlined that she viewed this role as being a demotion and stated that she did not wish to return to such a position.

Having regard to the foregoing, it is apparent that following a period of maternity leave, the Complainant was not permitted to return to her former role or, for a period of time, not permitted to return work at all. While the correspondence issued to the Complainant at this time reads much like a letter of dismissal, it can be inferred from the wider factual context that the Respondent placed her on a form of lay-off. In particular, it is noted that the Respondent did not remove the Complainant as an employee with the relevant authorities at this time, that other members of staff were placed on lay-off shortly thereafter and that the Complainant was issued with general correspondence relevant to all employees following her removal from the workplace. It is further noted that the direct evidence of the author of the correspondence was that he did not intend to dismiss the Complainant at that time but wished to place her on lay-off prior to her return to work. Thereafter, the Complainant was offered an alternative role, but apparently was never considered for a move back to the role she held prior to her maternity leave. In consideration of the accumulation of the foregoing points, I find that the Complainant has established the primary facts upon which a presumption of discrimination may be inferred. As a consequence of the foregoing, and by operation of Section 85A as referenced above, the onus of proof shifts to the Respondent.

When asked why the Complainant was placed on lay-off prior to anyone else in the organisation, the Director of the Respondent stated that he was aware of difficulties the business was experiencing and did not wish the Complainant to return to an uncertain position. While the Respondent’s intentions may have been well-intentioned, the fact remains that the Complainant was placed on unpaid lay-off prior to any other member of the company solely on the basis of her absence due to maternity leave. While potential layoffs were discussed with the rest of the employees shortly thereafter, the Complainant was presented with her removal from work as a fait accompli and was offered no real opportunity to advocate for her return to employment.

One issue the Complainant did raise in correspondence at the relevant time was her right to return to the role she held prior to her maternity leave. From the factual matrix presented by the parties it is apparent that this role was not considered for lay-off by the Respondent. In circumstances whereby the Complainant held his role prior to the commencement of her maternity leave and was not permitted to return to the same thereafter, it is apparent that the Complainant suffered discrimination on the grounds of her availing of maternity leave.

Finally, it is noted that the Complainant was offered the role of “Service Department Receptionist”. In circumstances whereby the Complainant’s former role was that of “Administration Manager” and in circumstances whereby this role still existed, it is difficult to disagree with the Complainant’s assessment that the same represented a demotion from her former duties. In this regard it is further noted that the correspondence offering this alternative role to the Complainant is silent as to the Complainant’s right to return to the role she held prior to the commencement of her maternity leave.

Having regard to accumulation of the foregoing points, I find that the Respondent has not discharged the burden of proof imposed by the Act. In such circumstance, I find that the Complainant has been discriminated against and her complaint is duly deemed to be well-founded.

I find that the Complainant was discriminated against by the Respondent as consequently her complaint is deemed to be well-founded.

Regarding redress, given that neither party wished for the employment relation to re-commence compensation is the most appropriate form of remedy. In this regard, Section 82 of the Acts empowers me to award compensation to a maximum of 104 weeks’ remuneration for the effects of an act of discrimination.

Given the totality of the evidence present by the parties, I award the Complainant the sum of €12,480 in compensation for the effects of the discrimination.

Family Status, Discrimination, Role held prior to maternity leave