EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2013-055
(Represented by SIPTU)
Jahan Company t/a Irema Ireland
(Represented by Peninsula Business Services (Ireland) Limited)
File reference: EE/2010/814
Date of issue: 11 June 2013
HEADNOTES: Employment Equality Acts - Sections 6 & 8 - Gender, Marital Status & Family Status - Conditions of Employment
1.1. This dispute concerns a claim by Ms Anne Power that she was discriminated against by Jahan Company t/a Irema Limited on the grounds of gender, marital status and family status contrary to section 6 of the Employment Equality Acts in terms of conditions of employment in accordance with section 8 of the Acts.
1.2. The complainant referred her claim to the Director of the Equality Tribunal on 2 November 2010 under the Acts. On 5 November 2012, in accordance with his powers under section 75 of the Acts, the Director delegated the case to me, Hugh Lonsdale, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts, on which date my investigation commenced. Submissions were received from both sides. In accordance with Section 79(1) of the Acts and as part of my investigation I proceeded to a hearing on 4 March 2012.
2. COMPLAINANT'S SUBMISSION
2.1. The complainant started work for the respondent on 24 May 2006 as a Customer Service Administrator. On 28 August 2009 she went on maternity leave and she returned to work on 4 May 2010. On her return to work she was given a list of duties, which included scheduling which she had not been involved with previously, as well as those duties she carried out before she went on maternity leave.
2.2. The complainant submits that the scheduling had previously been carried out by a qualified engineer and when he left it was carried out by three people. When she started back after her maternity leave the respondent allotted time for training thus recognizing there was a change in her role. The complainant had difficulties with her workload because of the additional duties. There were meetings to discuss this with the Plant Manager (Mr A) and the Finance Director (Ms B). At a meeting on 9 June 2010 the respondent recognized the difficulties being experienced by the complainant. She requested more training and it was agreed that training would be ongoing until 8 July 2010.
2.3. At a meeting on 16 June 2010 Mr A told the complainant that things couldn't continue the way they were going and that she needed to talk to the Managing Director (Mr C) and Ms B. The complainant was very stressed by the extra duties and was on sick leave until 23 June 2010. The complainant had decided to invoke the grievance procedure on her return to work. The grievance clearly stated that the complainant considered she had been given excessive duties when she returned from maternity leave, that she had been working extra hours to do the work and that she had clearly outlined these difficulties to Mr A and Ms B. On her return to from sick leave on 23 June 2010 she was called to a meeting with Mr A and Ms B and she handed in her grievance at that meeting. The meeting proceeded and a number of allegations against her were read out. She was expected to give an immediate response and at the end of the meeting she was suspended with immediate effect and called to a disciplinary meeting on 29 June 2010. On 24 June 2010 the complainant received a letter from Mr A confirming he was to hear her grievance and would be accompanied by Ms B. The meeting to hear her grievance took place on 29 June 2010, instead of the disciplinary meeting. During the course of the meeting Mr A threatened the complainant with civil action but this was not included in the respondent's minutes of the meeting. The findings were issued on 30 June 2010 and Mr A concluded that he could not find sufficient grounds to substantiate the grievance.
2.4. The complainant submits that it was completely inappropriate for Mr A, with the assistance of Ms B, to investigate her grievance when they were the same people who were dealing with a disciplinary matter against her. The complainant appealed this decision to the Managing Director (Mr C) and this hearing took place on 20 July 2010. The outcome was issued on 23 July 2010. Mr C stated that that only some of the additional duties outlined were actually in process while the complainant was being trained. The complainant submits this acknowledges the complainant was having difficulties but was going to be given extra duties when the training was completed. It also confirms that Mr A did mention the possibility of taking civil action.
2.5. On 19 August 2010 the complainant received a letter advising her that as they had fully completed the grievance process the complainant was required to attend a disciplinary hearing. The letter set out matters that would be discussed but they had added to the three issues she had been told about earlier and included the serious accusation of "alleged deliberate behaviour leading to a threat of a high valued client to withdraw their custom from IREMA which lead to a complaint from X Limited". The complainant was not allowed to bring her solicitor to this meeting. The disciplinary meeting took place on 25 August 2010 with Mr A in the chair. The complainant considered this unfair as he had recently dealt with her grievance and she did not know how he could be unbiased. The complainant told the respondent that she considered they had breached the Employment Equality Acts and the Maternity Protection Acts and that she was entitled to her old job back. She outlined that the additional duties meant she was overworked. She apologized for the wording of an email she had sent to a client and stated she was willing to apologise to the client. On 30 August 2010 the outcome of the disciplinary meeting was issued and the letter referred to the outcome of grievance procedure, which shows that Mr A was influenced by matters arising from the grievance. The complainant was issued with a first and final written warning issued because of the potential risk of losing a customer and her suspension was to continue until 1 September 2010.
2.6. The complainant appealed this decision and gave the reasons as being the severity of the sanction and that there were mitigating circumstances; in that she was suspended only 29 days after her return from maternity leave, and her training into the new duties had not been completed when she was suspended. The appeal hearing took place on 9 November 2010 and the outcome was issued on 11 November 2010. Mr C decided the matter had been dealt with fairly but the sanction was reduced to a first written warning.
2.7. The complainant went on sick leave on 1 September 2010. The respondent referred her for a medical investigation, which took place on 8 February 2011. The report stated: "I recommend a return to work over the coming weeks once her declared work issue has been discussed with her employer and a suitable procedure implemented to monitor the situation." Yet on 24 February 2011 the respondent wrote to the complainant and said "the report has clearly concluded that you are in satisfactory health and medically fit for work." and asked for a meeting. The meeting was arranged for 29 March 2011 but the complainant had to cancel because of a family matter. It was not re-arranged.
3. RESPONDENT'S SUBMISSION
3.1. The respondent states that it is a leading manufacturer of face masks & filter media. It confirms that the complainant started work for them on 24 May 2006 and she was issued with a contract of employment. This included a list of duties which includes the proviso 'you shall also undertake such other duties and exercise such powers as the Company shall assign or vest in you". The complainant was on maternity leave from January to September 2007 and again from September 2009 to May 2010. During her second maternity leave the company suffered a substantial decline in demand and substantial changes were made. This included letting go temporary production staff and following a review of some work practices they introduced Lean Manufacturing to the company. Mr A was appointed Plant/General Manager to implement this new system of working.
3.2. On her return to work in May 2010 the complainant met with Mr A and Ms B and was advised of the economic difficulties and the changes which were being made. The work the complainant carried out before she went on maternity leave had reduced considerably. The complainant agreed to her a change in her hours, which meant she started and finished half an hour earlier each day. Also her new duties were set out in writing and she was given a full explanation of the Lean Management system. However the main aspects of her duties had not changed. All seemed to be going well and the complainant raised no issues with the work at meetings on 18, 20 and 26 May 2010.
3.3. At a review meeting on 27 May review the complainant said she had too much to do in Customer Services. The matter was discussed and it was agreed to review the paperwork generated. The complainant was requested to provide a schedule of her daily work in order to allow the respondent to assess her workload. On 3 June 2010 at an update review meeting the complainant did not produce her work schedule. She said she would need another month's training regarding the preparation of schedules and this was agreed. Following a Capacity Plan meeting on 9 June 2010 a further request was made for the complainant to submit a schedule of her workload. At a meeting on 16 June Mr A identified a number of errors from previous days. The complainant said this was a result of her workload, errors being made by other staff members and the amount of time required for scheduling. The respondent was surprised by this as one of the people carrying out the tasks whilst the complainant was on maternity leave was still providing the schedules and updating them and doing this work in 1 hour per day.
3.4. The complainant informed the respondent on 17 June 2010 that she was suffering from stress and would not be attending work. On 22 June 2010 the respondent received an email complaint from their 4th largest customer (X Limited). The customer said they were unhappy with the service and attitude from the complainant and they were giving serious consideration to moving to another supplier. The respondent deemed this to be gross misconduct. When the complainant returned on 23 June 2010 she was called to a meeting to discuss the complaint and she was suspended with pay with immediate effect to allow her adequate time to prepare for a disciplinary meeting, which was scheduled for 29 June 2010. At the end of the meeting the complainant gave in a letter outlining that she felt her 'new duties were excessive'. The planned disciplinary meeting was postponed to deal with the complainant's grievance.
3.5. The respondent submits that they satisfied the Maternity Provisions Act which states that a woman should return from maternity leave to "suitable alternative work". The respondent contends the job she returned to was both suitable and appropriate and her terms or conditions were not less favourable. Work practices were altered throughout the company and all employees had their roles affected.
4. FINDINGS & CONCLUSION
4.1. The respondent made a submission that I have no jurisdiction to investigate this claim as the complainant had already taken an identical claim under the Maternity Protection Acts 1994-2004 to the Rights Commissioner Service. This claim is taken under the Employment Equality Acts and there is no provision under the Employment Equality Acts which would stop me from carrying out my investigation and issuing this decision. I therefore conclude that I do have jurisdiction to investigate this claim and I have to decide if the complainant was discriminated against in relation to conditions of employment on the grounds of gender, marital status and family status when she returned from maternity leave in May 2010. In reaching my decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence presented at the hearing.
4.2. The complainant contends she was discriminated against from the time she returned from maternity leave on 4 May 2010 because she was not allowed to return to the job she had before she went on maternity leave. As well as her previous tasks she was given extra tasks which she alleges were of a technical nature beyond her previous tasks and also meant that she had far too much work to do. This caused her a good deal of stress. She contends that she had outlined her difficulties to the respondent but nothing was done, apart from allowing some more training, so she invoked the grievance procedure.
4.3. The respondent contends the complainant's previous job had reduced considerably because of a reduction in the number of orders so she was given extra tasks, as part of a reorganisation in line with the introduction of Lean Manufacturing. The complainant raised difficulties and was asked to submit a daily work schedule to help them assess her workload but she never submitted any such schedule. On 3 June another month's training was agreed. At a later meeting on 16 June 2010 a number of issues were identified which the complainant said were caused by her heavy workload. The complainant was then on stress related sick leave from 17 - 23 June 2010. On her return she was made aware of a serious complaint from an important customer (X Limited) and she was suspended with pay. A disciplinary meeting was scheduled for 29 June 2010 but this was postponed when the complainant submitted a grievance. The respondent investigated the grievance and then pursued the disciplinary process.
4.4. The situation regarding a woman returning to work after maternity leave is set out in EU Directive 2002/73/EC Council Directive 2002/73/EC of 23 September 2002 amending Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards to access to employment, vocational training and promotion, and working conditions which states:
"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 on terms and conditions which are no less favourable to her and to benefit from any improvement in working conditions to which she would be entitled during her absence.". These provisions have been enshrined in the Maternity Protection Acts which state; "on the expiry of a period during which an employee was absent from work while on protective leave, the employee shall be entitled to return to work ... in the job which the employee held immediately before the start of that period", and "job means the nature of the work which she is employed to do in accordance with her contract of employment and the capacity and place in which she is so employed".
It follows therefore that any departure from this entitlement constitutes direct discrimination of the woman concerned on grounds of gender.
4.5. Whilst a woman is entitled to return to work after maternity leave she is not entitled to insist that she returns to the exact same duties as she was carrying out before she went on maternity leave. However, the job must be "an equivalent post", which means, in looking at the wording in the Maternity Protection Acts, that the job should be consistent with the nature of the work which she was contracted to carry out and did carry out before going on maternity leave. The respondent contends the duties assigned to the complainant on her return from maternity leave comply with this. The complainant contends both that the quantity of work was too great and some of the tasks were beyond the technical level she was employed to work.
4.6. I accept the respondent's evidence that because of a fall in orders the tasks undertaken by the complainant before she went on maternity leave had reduced. Therefore it was reasonable for them to assign her additional duties on her return. It is probable that if the complainant had not gone on maternity leave that her duties would have changed. I do not want to speculate but it is possible that she would have been asked to carry out the duties that she was asked when she did return from maternity leave.
4.7. From the evidence given, both in the respondent's submission and at the hearing decisions regarding organisational and management changes had been made before the complainant returned from maternity leave. Therefore the Plant Manager (Mr A) had a clear idea of the tasks he wanted her to undertake. Training was arranged for her to take over the scheduling but the complainant had difficulties coping with all of her new duties. She was asked to produce a work schedule but she did not do this and Mr A took no other steps to assist the complainant other than agree further training; even though the training to date had not been worked for the complainant. One of the people (Ms D) providing the scheduling training gave evidence at the hearing that they considered the training to have been adequate. However, it was also clear from the evidence that Ms D was very busy and had difficulties giving the complainant the time she wanted.
4.8. When Mr A raised issues with complainant on 16 June 2010 he expressed surprise when she gave reasons for her difficulties but no plan was put in place to assist the complainant. She was on stress related sick the following day until 23 June 2010. On that day she was told of a customer complaint and immediately suspended with pay. The contended that the suspension was given to allow the complainant prepare for a disciplinary meeting scheduled for 29 June 2010. However, because the complainant lodged a grievance this meeting was postponed until 25 August 2010. The outcome of the disciplinary process was announced on 30 August and the suspension lifted. At this time the complainant then went on long term sick leave. I give this chronology in detail to show that after Mr A raised issues they had with the complainant's work on 16 June 2010 she was given no opportunity to deal with them and the respondent made no effort to assist the complainant.
4.9. Also, I find it difficult to understand why the complainant was suspended. The issue with X Limited was raised with the complainant on 23 June but she was given no chance to put her side until the disciplinary meeting on 25 August 2010.
4.10. When anyone has their duties changed they should be given the level of training and guidance appropriate to the duties and to the individual's skills and experience. In this case when the complainant returned she was allotted a certain amount of training. I am sure that this was an amount of training which the respondent felt was appropriate. However, when it became clear that the training had not equipped the complainant for her new role they took no further action to ensure she was fully equipped to undertake the tasks. Also, the complainant was given no opportunity to rectify matters herself.
4.11. The complainant raised a grievance complaining about her treatment after her return from maternity leave and it was dealt with by Mr A, who was the person against whom she had raised the grievance. He could not be considered to be objective in this matter. Furthermore, he was the same person who was leading the disciplinary investigation against the complainant, which was looking into a mistake which the complainant contends arose from having too much were to do after her return from maternity leave and is therefore directly related to her own grievance. The respondent contends that Mr A was involved in both because they are a small organisation with few people in a position to deal with grievances and disciplinary hearings. However, everyone is entitled to fair procedures and these were denied the complainant when Mr A led both the grievance and disciplinary investigations.
4.12. I conclude that the complainant received inadequate support to assimilate her into her new tasks on her return from maternity leave and the respondent took no steps to ensure that the new duties amounted to "an equivalent post". Furthermore, Mr A's involvement in the grievance and disciplinary investigations led to a lack of transparency and independence and meant she was denied fair procedures. The lack of support and the lack of fair procedures arose from the change in duties when the complainant returned from maternity leave and I find this amounts to direct discrimination on the grounds of gender in relation to conditions of employment.
5.1. I have investigated the above complaint and make the following decision in accordance with section 79 of the Acts that the respondent did discriminate against the complainant in relation to conditions of employment on the grounds of gender.
5.2. Section 82 (i) (c) of the Act provides that I can make an order for the effects of the discrimination. The maximum award I can make under Section 82 (4) is two years pay. The EU Directives require sanctions for a breach of the principle of equal treatment to be effective, dissuasive and proportionate. In assessing the appropriate award in this case I have taken into account the award made by Rights Commissioner in relation to her claim under the Maternity Protection Acts 1994-2004 which was also made in relation to the change in her conditions of employment when she returned from maternity leave.
5.3. I order the respondent to pay the complainant €11,700 in compensation for the discriminatory treatment suffered. This figure represents compensation for infringement of his rights under equality legislation in relation to discrimination and does not include any element relating to remuneration, and is therefore not taxable.
11 June 2013