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Failure To Consult With Employee During Maternity Leave Resulted In Award Of €41,370

Facts: The Complainant commenced work with the Respondent in June 2016 and in April 2017 she was appointed to the position of Head of Human Resources, reporting to the Managing Director. The Complainant commenced her maternity leave on 29th July 2018 and took her 8 week additional approved leave and 4 weeks certified sick leave and returned to work on 24th June 2019. The position she was required to return to was materially different from her pre-maternity post. The last act of discrimination was on the 5th of July 2019 and the Complainant submitted her complaint to the WRC on 12th July 2019 under the Employment Equality Acts 1998 (“EEA”) and the Maternity Protection Act 1994 (“MPA”). The Complainant thereafter, resigned from her position in September 2019.

The barrister for the Respondent argues that the Complainant could not use dual avenues of redress for processing the same compliant.

Finding: Regarding the preliminary issue, the Adjudication Officer opined that the EEA do not contain a statutory prohibition on duplication of claims (Power v. Jahan Company t/a Irema Ireland Ltd EDA 1326). Referring to Cunningham v Intel Ireland Ltd. (2013) IEHC 207 and the current case, the Adjudication Officer held that “the absence of a previous hearing, decision or award under Maternity Protection Acts casts doubt about the applicability of res judicata…” and opined that there was no prohibited from considering the complainant’s case.

The Adjudication Officer while dealing with the main complaint, relied on Council Directive 2002/73/EC of 23 September 2002 which stated “a woman on maternity leave shall be entitled , after the end of her period of maternity leave, to return to her job or to an equivalent post…” and further stated that the  EEA recognises that discrimination on the gender ground shall be taken to have occurred where it is on ground related to her pregnancy or maternity leave. Further, while accepting the Respondent’s argument that the needs of the Respondent’s company changed, the Adjudication Officer pointed out the no regard was given to how the organisational changes would impact the Complainant’s role and status. He stated that “[i]mpact is not merely confined to salary, leave facilities and such tangible benefits”. The Adjudication Officer pointed out that no effort was made to retain her in the senior leadership team or to reverse the consequences of this and found that the revised role offered a diminished amount of responsibility and influence. Hence, the Adjudication Officer held that the role to which the Complainant returned was not an equivalent role following her period of protected leave. She found that discriminatory acts need not be intentional but that the Respondent had failed to rebut the inference of discrimination in terms of less favourable conditions of employment.

Referring to the Labour Court’s decision in O’Higgins v UCD, EDA 131, which the Respondent relied on as a defence, the Adjudication Officer held that in this case, there was a total lack of transparency concerning the existence of competitive process for the promotional post of HR Manager and that the Complainant was not advised of any advertisement nor was she invited to compete. The Respondent also failed to demonstrate how allowing the Complainant to compete would endanger their objective of creating a revenue generating position. The Adjudication Officer concluded that there was no proof the Complainant’s gender had nothing to do with her exclusion from the competition process and that the Respondent had failed to discharge its burden of proof in relation to same.

Determination: The Adjudication Officer held that the Complainant was discriminated against on the grounds of gender and ordered the Respondent to a sum of €41,370 (which represents six month’s remuneration) as compensation.

Takeaway for the Employers: The fact that the Complainant returned from maternity leave to an altered role without the same level of responsibility was sufficient for the Complainant to discharge the burden of proof to show an inference of discrimination.   This decision illustrates the importance of consulting and involving employees in respect of any changes that may impact her role and/or any promotions on offer, regardless of being on maternity leave. It further points out the importance of proving these communications and the content of same. Interestingly this Adjudicator, Marie Mulcahy, awarded six months compensation for discriminatory dismissal. The award may have been larger if the Adjudicator was Brian Dolan, based on his decision in ADJ-00010478.

30th March 2020

https://www.workplacerelations.ie/en/cases/2020/march/adj-00023183.html

Anne O’Connell Solicitors

Fitzwilliam Hall

Fitzwilliam Place

Dublin 2.

www.aocsolicitors.ie

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