Complainant

Respondent

Parties

Rebecca  Swords

Tots Creche

Complainant

Respondent

Representatives

Self-represented

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-00071936-001

27/05/2025

The complainant, Ms. Swords, submitted a complaint that she was discriminated against on gender and family status grounds. She also claims that she was discriminated against on conditions of employment and was victimised.

The respondent denies the complaints in full.

Summary of Ms. Sword’s Evidence

Ms. Swords gave testimony that she was employed by the respondent as a Childcare Worker since 7th December 2020. She said she worked on an off for the respondent prior to this also. Before commencing maternity leave, she worked 15-hours per week from 3-6pm daily. She said she registered her child for a place with the same respondent in the early stages of her pregnancy. She said she attended the office and the manager inputted these details. When she was ready to return to work towards the end of May 2025, she was informed that her child was not registered and there was no place for her to attend in the mornings. This entailed that she could not return to work herself due to the absence of childcare arrangements.

She then received some notifications from the respondent asking whether she was returning to work. She said as she had no childcare arrangements, she could not return. She said that she felt discriminated against when no childcare place was made available. She was pregnant again around this time and felt that the respondent did not want her back prior to a further maternity leave. She was informed that she could work mornings in another location which she was not satisfied with.

She said that when she went to return to work, she discovered there was a new group chat which she was not included on.

Under cross-examination, she was asked why she herself did not do the childcare booking on-line, and whether she received any communication on a place, pricing or creche hours. She replied that the manager had done this for her, and she expected staff to be in conversation with each other on these arrangements.

She was asked about the hours she expected to work. She replied that she was coming back to work part-time in the mornings as the afternoons would not suit with childcare for her older children. It was put to her that as she wanted to change her working hours to mornings, she was offered another work location. She replied that her expectation was to come back to her normal location with the hours changed to mornings. She was asked whether she paid a deposit for her child. She replied that she was going to organise this when she returned and took the manager’s word that a childcare place was initially booked.

She was asked that if she was working for another employer would they be expected to arrange childcare to match her working hours. She replied that she expected that arrangements were discussed internally within the creche after the manager took the original childcare booking.

Summary of Ms. Akerlind’s Evidence

Ms. Akerlind gave evidence that there was an automated childcare booking system and that as an employee, the complainant would have been aware of this. She said there was no formal communications with the complainant on childcare and that a cost was not even discussed. She said that when the complainant was due to return to work that herself and the other staff were unaware, she was pregnant and would be availing of maternity leave into the future. She said that the respondent would always try to assist staff where possible by offering part-time hours.

Summary of Ms. Mc Manus’s Evidence

Ms Mc Manus gave testimony that as there was no part-time (mornings) childcare place in May 2025 that she tried to facilitate the complainant with other alternatives. She said that these options were not taken up by the complainant and there was no confirmation of when she would return to work.

Preliminary Matter

In deciding on whether to reschedule the case, the interests of both parties need to be assessed. The respondent side attended on time and left when the hearing was closed. The complainant arrived between 10.45am and 11am and made an application to reschedule the hearing due to being delayed.

As per the WRC guidelines, postponements in advance of the hearing and adjournments on the day of hearing are granted on exceptional circumstances and substantial reasons. I find that exceptional circumstances existed as the complainant had just arrived after the respondent representatives had left. I also consider that the complainant should not be deprived of her right to take a case under the Employment Equality Act. For the reasons outlined, l decided to reschedule the hearing.

The Law

The Employment Equality Act promotes equality in the workplace and provides protection against discrimination. The Act prohibits discrimination on nine grounds, including gender and family status. Discrimination occurs when one person is treated less favourably than another is, has been or would be treated. The employee must demonstrate that they have been treated less favourably than a comparator although discrimination on pregnancy (maternity leave) does not require a comparator.

Section 85A(1) of the Acts 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.”

The Complainant is required to establish facts from which discrimination can be inferred. It is only when this burden is discharged that the burden shifts to the respondent to show that no unlawful discrimination took place. The Labour Court in Southern Health Board v Mitchell [2001] ELR 201 considered the extent of this evidential burden and 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.”

Applying the Law to the Facts

Complainant Evidence

The complainant contends that she has been discriminated against on gender, family status and conditions of employment. The issues arose in or around May 2025 when the complainant was returning to work after extended maternity leave.

The complainant is covered under the definition of family status as per the Act. The complainant was on extended maternity leave so is also covered under the gender ground. From her testimony, the complainant’s case is that the employer reneged on a childcare place, which would have facilitated her to return to work on a revised morning work schedule.

Respondent Evidence

The respondent witnesses gave testimony that the complainant had not registered her child. Without prejudice to this, they further rely on the fact that the complainant made no enquiries on whether a place was secured, pricing and creche hours. The respondent witnesses gave testimony that they were unaware that the complainant was pregnant around the time of her return date. This evidence was not contested by the complainant.

Findings

Having considered the witness testimony, I find that the respondent has rebutted any presumption of discrimination on gender, family status and conditions of employment. Although the complainant felt her child had secured a place, there was no documentary evidence presented that this was the case. No evidence was presented on written enquiries on the child’s placement hours, costs or confirmed start date. This lack of evidence on such an important issue of childcare and working hours is insufficient to show that discrimination on family status could have occurred. I am satisfied that there was no discriminatory treatment on family status.

The complainant alleged that the reason for not providing a childcare place related to possible future maternity leave as she was pregnant on her expected return to work date. The respondent staff cannot be held to have discriminated against the complainant when they were unaware that she may require further maternity leave. I am satisfied that there was no discriminatory treatment on gender grounds.

On the complaint of discrimination on conditions of employment, there was no evidence presented on unfavourable treatment of the complainant. The respondent accepted that the complainant was returning to work after maternity leave. When the complainant sought different conditions of employment (morning shift pattern), they made attempts to accommodate the complainant. The employer in this instance cannot be held accountable for providing childcare along with corresponding working hours based on a much earlier conversation with a manager which was not documented. For the reasons outlined, I decide that the complainant has not been discriminated against on conditions of employment.

Victimisation Complaint

There was no testimony given on how the complainant was victimised/penalised for having made an earlier protected act.

I decide that the complainant was not victimised.      

I decide that the complainant was not discriminated against on family status.

I decide that the complainant was not discriminated against on gender grounds.

I decide that the complainant has not been discriminated against on conditions of employment.

I decide that the complainant was not victimised.

Discrimination, Victimisation