EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2015-147
PARTIES
Ms Lisa Mc Sherry
(represented by Mr Stephen O Sullivan B.L. )
-V-
National Cancer Registry Board
(represented by Peninsula Business Services ( Ireland ) ltd.)
File Reference: EE/2014/034
Date of issue: December 2015
1 DISPUTE
1.1 This dispute concerns a claim by Ms Mc Sherry that she was discriminated against by the National Cancer Registry Board ( NCR) on the grounds of gender and family contrary to section 6 (2) of the Employment Equality acts in relation to conditions of employment, discriminatory dismissal in terms of section 8 of the Acts, and that she was victimised contrary to section 74(2) of the Employment Equality Acts .
1.2 The complainant referred her claim to the Director of the Equality Tribunal on January 29th, 2014 under the Employment Equality Acts. On 12th August, 2015, in accordance with his powers under section 75 of the Acts, the Director delegated the case to me, Patsy Doyle, an Equality/Adjudication officer, for investigation, hearing, decision and for the exercise of other relevant functions of the Director under Part VII of the Acts, on which date my investigation commenced. I received submissions from both parties and in accordance with Section 79(1) of the Acts and as part of my investigation, I proceeded to a hearing on 7th September. Further submissions were requested from the respondent in relation to the NCR annual budgets. Final commentary was received from respondent on October 6th and from the complainant on Nov 9th, 2015.
1.3 This decision is issued by me following the establishment of the Workplace Relations Commission on 1st October 2015, as an Adjudication Officer who was an Equality Officer prior to 1st October 2015, in accordance with Section 83(3) of the Workplace Relations Act 2015.
2 COMPLAINANT'S SUBMISSION
2.1 The complainant commenced work as Trial Co-ordinator on a 35 hr week on the ATHENS research project on 8th March, 2010. She returned from the UK to take up the research project. The job advertisement had suggested a possible two year tenure. However, no end date was inserted on the specified purpose contract signed on 4th February 2010.Funding of €157,600 had been secured for the research in 2009.
2.2 The complainant reported to an Epidemiologist on the research programme and she told the Tribunal that in 2010, while on a train journey, the line Manager expressed negative comments to her on Irish women having children at two yearly intervals. The complainant was taken aback by the statement and was nervous when she informed her line manager of her own pregnancy in January 2011.
2.3 In March, 2011, the complainant was offered a PhD by publication based on the ATHENS project. In addition, the line Manager offered to supress the funding for the project for the duration of the impending maternity leave. This would facilitate an opportunity to extend the contract and negate the need to have a locum in .The line Manager indicated that she wished the claimant to maintain contact during her protective leave to maintain the momentum of the research project .The complainant signed up for the PhD, which she understood would improve her tenure with NCR. The complainant recalled that her line manager made a value judgement statement while on a research trip to Lisbon, while she was 33 weeks pregnant that “women work less after having a baby”. She was upset.
2.4 The Maternity leave ran from 25th July, 2011 to 27th January , 2012 and with add on annual leave and unpaid leave , the Complainant returned to work on a 4 day week (parental leave ) on 17 May , 2012. During this time she linked in with work contacts such as behavioural psychologists and Health Research Board Scholars in addition to completion of paper work. In January, 2012, while on leave, the complainant passed up an opportunity to apply for a three year Fellowship position on the research project , CERVIVA. She submitted that her line Manager actively dissuaded her from applying by saying it was more suited to another colleague.
2.5 By the end of January, 2012, the complainant told the Tribunal that her Line Manager had pulled funding for the PhD and the only alternative she had of self-funding was not a viable option .On 3, February, she received a contact from the line Manager to consider attending a conference in the UK as a Poster for ATHENS had been accepted.
“The Conference is in April in England. I had assumed that you would be back and might be able to attend. I’m not particularly keen on going myself, but now that you are going to be on leave in April, we probably do need to decide who is going to go . BTW, I don’t actually expect you to attend during your period of leave.”
The complainant described being torn between living up to the new role of mother to a young baby and wishing to do what was necessary to maintain her employment relationship with the NCR as she had sought a contract extension. On 13, February, the Equality Authority issued an advice note to the complainant:
“…. Maternity and unpaid leave is for the purpose of caring for a child and not for work purposes. If your employer continues to pressurise you into working or into attending a conference then you could refer a complaint to the Workplace Relations under the Maternity Protection Acts “
2.6 The Contract was extended for a further year on 7 March, 2012 to coincide with her return from unpaid leave in May 2012. The complainant worked hard taking on an extended role in preparation of application for grant funding and she obtained a good performance appraisal for the period April 2012 to March 2013.
2.7 In April 2013, the complainant informed her line manager that she was pregnant with her second child and the news was well received.
2.8 In July, 2013, The HRB funding to extend the ATHENS project was unexpectedly rejected . NCR formed a plan to resubmit the funding application , but the complainant reported an unease as she said that the same spirit of energy and innovation did not accompany this plan for refunding and she felt that the line Manager was distant towards her . The complainant stated in her written submission that :
“the Line Manager said that she had no money to pay my maternity leave, but she was happy to hire me once my maternity leave was over .I was confused as I knew that she was about to use research overhead funding to renew another colleagues’ contract ……she said that if we couldn’t secure any funding then she would continue to expect me to continue working on writing papers, etc., while I was “off”( mat leave ) “
Thereafter followed a period of conflict as the complainant contended that 10 k was remaining in the base research project funding but this was denied by the NCR saying that sum would be needed to pay the complainant her redundancy payment. The complainant contended that precedent established on her first maternity leave should be reinstated this time: i.e. base project funding suppressed and funding for maternity leave found in NCR core funding. This did not happen.
2.9 On July 30, 2013, the complainant met with her line Manager and explained her bone fides in relation to the research project but she needed to protect her contract with NCR. She told the line manager that she felt that her pregnancy was being used against her and that the proposal to make her redundant was unfair. On August 1, a letter issued from NCR extending the contract to 31 Oct, 2013.There was no mention of redundancy on this letter.
2.10 On the 13th August , the Director of NCR sent an email of clarification to the complainant following HR intervention:
“The situation seems quite clear. The grant provides for the payment of salary to a named co applicant on the grant and it requires the host institution to undertake to employ the co applicant in the event of the grant being awarded….. Assuming that this year’s grant is awarded on the same basis, then you would be automatically entitled , as a named co applicant for whom a salary is being provided, to be employed by the Registry on that basis for the duration of the funding “
The Complainnat had a two week period of pregnancy related sick leave in mid August.
2.11 The complainant sought to speak to the Director herself as she wasn’t happy to be made redundant and then rehired at an unspecified later date. The Director undertook to organise a tri partite discussion between the complainant, the line Manager and him, as Director .This was arranged for September 20th. The complainant had commenced sick leave from the first week of September and her anticipated commencement date for maternity leave was October 14th.
2.12 The complainant attended the meeting of September 20th in the company of the Director, Line Manager, and HR Officer .This meeting failed to resolve matters as the NCR did not have a counter proposal for the complainant on either her maternity leave payment or the extension of the contract. the complainant recalled the line manager saying that: ”We only agreed to renew the contract before we knew your due date “The complainant left the meeting in tears and humiliation and sought to focus on her pregnancy .On 24th September, she was placed on notice of redundancy for 31 October, 2013 as the funding for the research would have expired by that date .
2.13 On 30th September, a fellow researcher notified the complainant of her own extension of contract by two months to end of December 2013. This was against the backdrop of exhausted grant funding.
2.14 On 4th October, NCR asked the complainant whether she wished to proceed with a revised application for HRB funding for the research project which had a closing date of October 31, 2013.The complainant responded by email saying that she wished to remain a co applicant and she would assist in commenting on or signing off the application . However, NCR wanted her to compile the entire document , which she described as a mammoth task while she was on sick leave followed by maternity leave on Oct 11th .
2.15 On 8th October, the complainant lodged a complaint on the perceived inequity on the renewal of a fellow researchers contract in circumstances no different to hers. In addition, she alleged that she had been discriminated against .This matter was fast racked to the National Director of NCR for resolution.
2.16 On 11th October, the complainant submitted that she was entitled to a contract of indefinite duration under Fixed Term Legislation. This matter was referred by NCR to the Minister for Health as the NCR told her that they were not empowered to offer permanent positions.
2.17 On the 15th October, the complainant received a letter from her Line manager to her home address. This letter challenged the complainant that
1. The additional funding achievable from the re submitted application was to secure her future re-employment at NCR
2. She was to lead the re submitted grant application
3. October 30th was the known deadline
4. Participation in the funding application was not part of her current post
5. Rejection of the offer for comment /sign off
6. Request for urgent contact
2.18On 17th October, the complaints grievance was heard by Tele conference with the National Director of NCR. The outcome was an extension of contract to Dec 31st, but redundancy remained in the NCR Action plan. The complainant appealed this.
2.19 There were further contacts from the Line Manager in relation to the ATHENS PROJECT funding application and the complainant furnished a very frank response to her line manager on 19th December, 2013 redrawing the lines of responsibility back to the Line Manager and not to the complainant who was caring for her young baby.
2.20 The complainant was made redundant on 31 December, 2013 and received an exgratia amount of €5184 on January 24th 2014. The case was referred to WRC on 29th January, 2014. The question of the Contract of Indefinite Duration had been vetoed by the company.
2.21 On 12th February, 2014, The National Director NCR responded to the complainants November 2013 appeal. It set down a criteria for allocation of the research support budget but did not address the complainants appeal.
2.23 The complainant submitted copies of advertisements from 2014 for two research positions under CERVIVA, the umbrella for ATHENS at NCR.The case made was that these advertisements issued 1 working day after the complainants protective leave expired.
2.24 In commenting on the respondents supplementary submission, the complainant pointed to the € 41,014 surplus on the 2013 NCR accounts, as a means to retain her in employment. The respondent had explained that this was Dept. of Health funding which was not available to them to pay for researchers.
3 Respondents’ Submission
3.1 The respondent denied all claims of discrimination against the National Cancer Registry Board which they identified as a Public Body . NCR had 51 employees on 70:30 female male ratio. Their research work is wholly dependent for funding on external sources such as Health Research Board, Dept. of Health and The Irish Cancer Society.
3.2 The respondents representative told the Tribunal that the complainant was employed on two year specified contract as a Trials Co-ordinator, ATHENS research project in March 2010. A budget of €157,600 was allocated from the Friends of the Coombe Charity to undertake the ATHENS research project. The Health Research Board (HRB) had supported the research initiative and NCR were fortunate to secure the Financial support. The grant was released consistent with the complainants start date .The contract was a specified purpose contract linked to the ATHENS Project. It was estimated to run for 24 months .The respondent detailed the renewal of the contracts for the complainant as:
1 First renewal was in May 2012 for 12 months to May 2013
2 Second renewal from May 2013 to September 30th , 2013
3 Third renewal from September 30, 2013 to October 31st, 2013
4 Fourth renewal from October 31st to December 31st, 2013 ( followed by redundancy )
The respondent contended that all renewals were linked to the core function of the ATHENS research project, either to complete the project, publish papers or to allow time to submit a new grant application .These were cited as the objective grounds for renewal of the specified purpose contract and the rationale for not making the position permanent .The respondent argued that by 26th February, 2013, the core work of the project was coming to an end.
It was common case that Ms Mc Sherry’s contract of employment concluded in a redundancy situation with the payment of an ex gratia statutory redundancy paid in January 2014.It was further stated that there was no basis for the issuing of a Contract of Indefinite duration to the complainant by the respondent .
The respondent wanted the Tribunal to have regard for their contention that the contract“ expired naturally during her maternity leave “and that redundancy followed because of the claimant having in excess of two years service,which automatically qualified her for the payment .
3.3 The respondent recorded that they had made 7 official redundancies between the years 2005 and 2015. These were for four females and three males. They also stated in their written submission that all researchers are made redundant:
“regardless of gender once their work on the project has ended and once the funding for such work has ended”
3.4 The respondent denied discrimination on Family and gender grounds and took offence at the complainant’s negative commentary regarding her Line manager. The respondent contended that Ms Mc Sherry exaggerated the work requested of her during her tenure at NCR and that she had in fact produced one sole paper during her time there .The line manager was not available to the Tribunal. In their supplementary response to the allegation that the complainant had been actively discouraged from applying for a three year research position in early 2012, the respondent submitted that the position had an essential eligibility criteria of PhD which the complainant did not possess at that time:
“the Line Manager was an employee of the Registry like any other . She had no input regarding the policies of the respondent in respect to equal opportunities. She absolutely did not dictate the ethos of the organisation in line with her alleged prejudices against persons with children”
3.5 The respondent denied Victimisation under the Acts by contending that the NCR decision on the contract expiration occurred well before the compliant was made to the Tribunal on January 29, 2014. When the position of Project Co coordinator for CERVIVA was advertised some eight months after the Departure of the complainant, she did not apply.
3.6 The respondent argued strongly that the complainant’s maternity status did not disadvantage her on the Project, nor was it the reason for her dismissal.
“The NCR never have or never will terminate the employment of any employee based on maternity status. In 2011, her job was kept open for her and her Maternity benefit was topped up by NCR to her pre maternity salary level so she was not disadvantaged financially or in any other way because of her maternity status .It should be noted that the grant on which she was employed provided no facility to make any payments to her while on maternity leave. However, in the interest of equality and fairness the NCR made this payment to her from elsewhere in its budget, as it does for all staff on maternity leave “
The respondent produced a 2015 Draft Staff Handbook which set down that all staff would receive full Maternity pay for 26 weeks bar, the exception to this was the staff on specified purpose contracts who would receive full pay up until the natural expiry of the contract.
3.7 The respondent placed the responsibility for compilation of the revised grant application firmly at the feet of the complainant and that while the complainant failed to compile and submit the application, this corresponded with the consequence of redundancy as there was no other way open to them to extend the contract .NCR paid the redundancy from core funding not linked to the research grant .
3.8 The respondent rebutted all allegations against Ms Mc Sherry’s line Manager and opined that the Line Manager had in fact opened doors for the claimant by allowing her to lead the application process to save her position in NCR . They rebutted all allegations that her style was “ last minute” Had the line Manager compiled and submitted the revised grant funding then it would have fallen to NCR to advertise the research post externally by open competition which would not have helped the complainant .
3.9 The respondent pointed to constraints imposed on the NCR via their Establishment Order , SI 293/1996, wherein permission is necessary from both Ministers for Finance and Health for all permanent appointments to NCR. I note that this was 7 years before the commencement of the Protected of Employees ( Fixed Term) Act 2003 was commenced .
“ Permission has never been given for contract researchers to be made permanent “
This had resulted in the NCR losing a lot of researchers over the years.
They wanted the Tribunal to be aware that contract research staff are treated on a par with NCR research staff through access to salary, annual leave, flexible working and training opportunities. They have never had a complaint from staff in their 22 years of operation.
3.10 The respondent was unhappy that they did not receive official notification of application for maternity leave from the complainant until September 2nd after an extended period of sick leave .They were unhappy with the conduct of the complainant during this time due to her inordinate delay in submitting the application form which detailed maternity leave requested as October 14th 2013 to April 11,2014,( subject to contract) .In addition ,the claimant pursued her grievances upwards within NCR and latterly to the Equality Tribunal and this annoyed the respondent who disputed her grounds for doing so given that she herself had sought a contract extension to December 31st 2013.
3.11 The respondent submitted the Financial statements for years 2013 and 2014 and submitted that as a public body there was no provision to retain funds at the end of the year .In 2013, there was a declared surplus of €41,014 on the Dept. Of Health permanent budget , however they contended in their written submission that :
“This surplus is automatically set against our drawdown for January, and is purely an accounting convention “
3.12 The accounts were qualified by stating that the accounts showed the NCR budget which was an accumulation of Department of Health Allocation and external funding. While the accounts were helpful, the actual allocation of the initial grant funding for ATHENS and the record of the pathway of expenditure specific to the complainant was not clearly visible to me . I did establish the presence of an invoice summary for the Claimants research project March 2010-2013 .In addition, the NCR stated that they were not permitted by their Auditors to retain funds or record a surplus due to their public body status .
3.13 The NCR contended that they had not discriminated against the complainant by notification of the redundancy on October 29th , 2013 as it had complied with their obligations by substantiating their position in writing following the complainants activation of the NCR grievance procedure. It was not open to the respondent to extend the contract beyond the cut-off date of December 31st as there were no funds available. The respondent contended that they had done all in their power to retain the complainant in post including seeking the intervention of the National Director of NCR to manage the grievance at a national level.
4 EVIDENCE OF DR COMBER , DIRECTOR
4.1 Dr Comber did not have direct involvement in the application for grant funding . This was the role of the Principal Investigator and the Co Investigators .The work involved
1. Estimation of salary
2. Estimation of administration costs
3. Research Plan – deliverables
Dr Comber described the lines of demarcation around the participants in the application for revised funding for ATHENS on the second round application. He told the Tribunal that everyone involved received a draft application to canvas their ideas. In the case of the complainant , if she was recorded as co applicant and the bid succeeded then she would be funded for continuation in post .He emphasised that while the Principal Investigator , in this case, the line manager was “ mainly responsible” , the co-applicant held a significant degree of ownership through literature reviews and ownership of ideas.
He recalled the September 20th Meeting and recalled that NCR did not have money to continue the complainant in position. He recalled that out of 9 researchers in 2010 , only 4 of those remained . He believed that the complainant could have compiled the grant application form in time for submission as the line manager had completed her part.
He stated that the second round application had been lost to NCR because of this omission by the complainant. He told the Tribunal that there was no opportunity open to them to either make the complainant permanent as the public service moratorium was in place, or extend the contract in the absence of means to pay.
Research Grants did not have a percentage inbuilt to cover maternity leave and while the first maternity leave of the complainant was dealt with pragmatically, by suppression and top up from core funding, it was not open to NCR to repeat the practice in October, 2013. Dr Comber confirmed that the Line Manager had left NCR in January 2015 and was not available to the Tribunal
.
5 Findings and Conclusions Of The Equality Officer/Adjudicator
5.1 There are three issues for me to decide :
(1) Whether the complainant was discriminated against and subjected to discriminatory dismissal on the grounds of gender and family status contrary to s.8(6)(c)of the Acts .
(2) Whether the complainant was victimised within the meaning of s.74(2) of the Acts .
(3) Whether the complainant was dismissed because she opposed discrimination.
5.2 In reaching my decision I have taken into account all of the submissions, written and oral, made by the parties. Section 6(2A) of the Act states that discrimination on the gender ground shall be taken to occur where, on a ground related to her pregnancy or maternity leave, a female employee is treated, contrary to any statutory requirement, less favourably than another employee is, has been or would be treated. Discrimination on the ground of family status (in the complainant's case as a parent) is also prohibited.
5.3 Section 85A of the Act sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts upon which she can rely in asserting that she was discriminated against. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.
5.4 I would like to make a number of observations on my review of this case to date .NCR is a Public Body as evidenced by the complainants stated contribution to the nominated health agency superannuation scheme and the declaration by NCR at the Hearing . The terms of the Croke Park and Haddington Road Agreements[1] (July 2013) were applicable to this employment. This is evidenced by the increase in the claimants hours from 35 to 37 hrs.
“The Government reaffirms the commitment given under paragraph 1.6 of the Public Service Agreement that compulsory redundancy will not apply within the public service, save where existing exit provisions apply .This continues to be subject to the agreed flexibility on redeployment being delivered”
The NCR did not embrace this aspect of a National Agreement which covered all public service employees. I would have expected some work at least to have been done, given the complainants undisputed skills on exploring options for re deployment in the event that NCR anticipated a change in the circumstances. I note from the respondents submission that it is anticipated that NCR will, in time amalgamate with the HSE and that this is awaiting Legislative change.
I find that there was a missed opportunity on the respondents side to resolve the contract dilemma under the umbrella of the National Agreements prevalent at the time. I note, in particular an email dated 4 July, 2013 submitted from an external professor attached to TCD and The Coombe to the line Manager expressing her disappointment that the funding application had been rejected, went on to propose two defined courses of action to secure funding to retain the complainant. Both involved a potential for redeployment .Neither were mentioned by the respondent in their submissions. In addition, this Professor outlined that it was important for the complainant to secure her PhD.
In Trinity College v IFUT[2] the Labour Court found in favour of lecturers who argued that their Contracts of Indefinite Duration protected them from compulsory redundancy. TCD argued cessation of funding as the rationale for redundancy and that this had been an express term in the contracts of employment .The Court held that the claimants “individual employment history, for reasons specific to each of them individually” entitled them to the protection of the Croke Park Agreement.
In 2012, the Government and the Public Service concluded a collective agreement on enhanced redundancy payments that would cover any voluntary exits “where circumstances require it “This was not examined by the NCR or put to the complainant. Note UCC v Bushin [3] which provided for an extension of an ex gratia redundancy payment to the statutory payment.
5.6 I am not satisfied that the respondent was fair minded towards the complainant when she sought to secure a contract of indefinite duration. I fully appreciate that the NCR was a busy dept, driven by service imperatives and funding deadlines .However, The unilateral reference to the Minister for Health and DPER was completely disproportionate and not a pre requisite under SI 293/1996, I believe that this was confusing for the complainant and served as a distraction. However , as the claims before me are under Employment Equality Legislation ,I cannot determine that the complainants contract was in fact a contract of indefinite duration (CID) under section 9(1) of the Protection of Employees ( Fixed Term)Act, 2003.
I did probe at the Hearing whether anyone in authority at NCR had extended efforts to secure a CID for the complainant given the proximity of the accumulation of contracts to 4 years duration at the time of her dismissal? (i.e. 10 weeks , March 8, 2014 and within the time frame of the protective leave , April 11, 2014) and the assurances that DOHC and DPER would be approached .Nobody had. Instead, the email from the HR Office on Dec 3, to the complainant is worthy of extracting.
“Your employment with NCR commenced in March, 2010 so you are in fact protected under S9(2) which requires you to have four years service before you can be considered for a CID…..Regarding the situation with DOH and DPER, I should explain that the NCR does not require the approval or sanction from either of these Depts to refuse a contract of employment but does require such approval to award one. Should either of these Depts issue us with an instruction to award you a CID, then we will withdraw the notification of redundancy “
This is an extraordinary message for an employer to impart to an employee who was on statutory maternity leave, having given birth 4 weeks previously. There was no evidence adduced in this case that anyone at NCR advocated for the complainant and in fact her own advocacy for her case seemed to frustrate the NCR, who appeared to be content to compartmentalise issues and spin out any possibility of resolution in the case before dismissal . It seems extra-ordinary to me that NCR seemed to accept that researchers would not achieve permanency at NCR and that no efforts were extended to apply the National agreement pathway on redeployment either within NCR or a comparable public service.
5.7 I accept the respondent’s evidence on the pre requisite of a PhD for the 2012 CERVIVA position. I also accept that the NCR had a high regard for Ms Mc Sherry’s competence as a researcher as evidenced in the performance appraisal, her extended role on website support and the posters completed. That is why I am troubled by the lack of a concerted attempt by anyone to retain her skills in an organisation as pivotal as NCR. I also acknowledge that the complainant was given a choice by the respondent on whether or not to attend the UK conference during her first maternity leave in April, 2012.
5.8 I find it utterly implausible that the second round submission for additional funding for the ATHENS project was placed at the complainants feet for completion and submission in the last tri-mester of her pregnancy, during her protective leave and right up to December 12,2013. This was an inconsistent approach to what was set down in the document referred to as “ Guidance Notes on key dates and times for Health Research Board Awards, 2013” which accompanied the first submission for second round funding for ATHENS in 2012/2013
· Host Institutions will approve and submit each application on behalf of the applicant.
· The Principal Investigator will serve as the primary point of contact for the HRB on the award and during the review process
· The Principal Investigator must hold a post ( permanent or a contract that covers the duration of the award)or be a a contract researcher recognised by the Host institution as an independent investigator who will have a dedicated office and research space for the duration of the award, for which she will be fully responsible.
It is my opinion that the complainant was placed in an unenvious position with regard to the second funding stream. At face value, she was not the correctly identifiable applicant based on the Funders criteria. The argument on “whose job was it anyway” to submit the papers is possibly answered best in the respondent’s submission of Dec 3, 2013.
“ I have received confirmation from L.S.that the grant application to the HRB which you refer to has not been submitted. In her letter to you dated October 14th, 2013, L requested that if you wished to proceed with the application you should reply to her by October 17th. She stated that that if she had not heard from you by that date she would assume you were no longer interested and she would inform the co applicants. As no communication was received from you by that date the application was not submitted “
It was clear that NCR, at Principal Investigator level decided against submitting the second stream funding, during a time when the complainant was on protective leave. The complainant was not informed of this. NCR through its agents sought to place the complainant at the fore front of this application at a very vulnerable time in her life i.e. at first during her pregnancy related sick leave and latterly during her maternity leave on the eve of her dismissal through redundancy.
I believe that the Employer should have had a greater understanding of the complainants stated need to be afforded time to be a primary carer for her family at this time , given that she had sought this time during her earlier maternity leave . They did not submit evidence at the hearing which confirmed that the complainant had agreed to take on the role of lead on the second funding stream at any time.
Therefore, I prefer the evidence of the complainant that she had repeatedly canvassed for the Line Manager, LS to complete and file the application, which while uncertain of success, would have given her an extension in tenure if the funding had been endorsed by HRB. The supervening events which interrupted this was the complainants protective leave and the withdrawal from the process of the second stream funding application by NCR.I accept that the complainant offered to support the process while on her maternity leave .However, I am again struck by the disorganisation and disconnection on behalf of the respondent .
“Your letter seems to suggest that I have a choice to either work on these papers or not .It’s not case of not wishing to finish these papers . I simply can’t. Firstly, I am on maternity leave with a six week old baby. This is a job which is all consuming and cannot be taken lightly. My maternity leave is supposedly protected under the Maternity Protection Act but this is something that you don’t seem to understand and repeatedly ignore…..”(extract from email to line manager Dec 19, 2013)
5.8 I do not profess to be an expert on accounts. On review of the accounts for 2013, I found there to be a clear surplus of just over 40,000 euro. I appreciate that the respondent reported this to be little more than an accounting convention. However, taking account of the considerable lea way exercised by the respondent in terms of the management of the first maternity leave in 2011 and the extension of a fellow researchers contract to December 31st 2013, the respondent could have explored any available options to cover the complainants maternity leave top up pay which would not have equated with full salary given the base funding by Social Welfare .There are considerable overlaps in this case and Trailer Care Holdings ltd v Deborah Healy[4] where the Labour Court looked behind the cloak of a redundancy and found a discriminatory dismissal .
5.9 Two employees of NCR, one male and one female were reportedly made redundant in March and December 2014 respectively.
5.10 On 12th February 2014, The National Director of Cancer Care Programme wrote to the complainant in answer to her appeal of her redundancy decision. In the letter, she referred to the existence of a “General research support budget” to cover eventualities if and when a research project is incomplete and funding is an issue. This letter told the complainant that in the event that a project time frame was approaching an end, the NCR retained a certain subjective discretion to extend a researchers tenure in the case of data collection and processing. In the event that extra writing up time on projects was needed then
“Most researchers have continued to do this in a collaborative way with the Registry after moving to new posts; this is normal in academic research.”
Given the elaborate detail provided in this letter, I am struck by 3 (d) of the document which I believe deserves a full quotation:
“If the original period of funding is coming close to an end, but some funding still remains available and significant work still remains to be completed on the project, the researcher is informed that work on the project may continue, with her agreement, beyond the originally anticipated period. The purpose of this is to allow the researcher more time to complete the work set out in the project description and the employment contract .However, it should be noted that this is a continuation of the same project rather than a renewal or extension. Although sometimes referred to as “extensions” these are not actually extensions, as no period was specified in the employment contract “.
This is a clear endorsement of the complainants submission that the contract of employment was not restrained by time and was instead open ended. It also points to confirmation of the significant lea way held by NCR on local management of fixed term/specified purpose contracts.
5.11 I find that there was a context and background of disorganisation in relation to the management of the fixed term contract on the ATHENS project which served as a” bottleneck “. This may well have been unintentional in a busy research Dept. but on this occasion, the situation seemed to deteriorate rapidly once Ms Mc Sherry shared the details of her second pregnancy with her Employer in April and when the first funding application was rejected in July. This goes to the root of this case.
5.12 Two copies of the staff handbook were presented in evidence. The complainant submitted the 5th edition dated August 2008. She gave evidence that this was the version operable during her employment. Three excerpts are of note here:
MATERNITY LEAVE: Complainants version
1 Cover of Maternity (Protection of Employees) Act 1994
2 Additional unpaid leave up to 16 weeks is available
3 Paid leave for ante natal and post natal leave .( appointments) The entitlement for post natal appointments applies during the 14 weeks after the birth.
The respondent submitted a staff handbook marked draft in 9th edition dated May 2015.
MATERNITY LEAVE: Respondents version
1 Cover of the Maternity Protection Act, 1994
2 Confirmation of payment by NCR “The Registry will pay the difference between the employee’s salary and maternity benefits for 26 weeks. Employees on fixed term/specified purpose contracts will receive this payment until the natural expiry of their contract...
3 Unpaid leave and paid leave for ante and post natal appointments remained during the 14 weeks after the birth .
5.13 On this occasion, I accept that the complainants submitted document was the handbook operable during her employment, given that the respondents version post-dated the complaint and was presented in Draft format .I find that the respondent did not follow their own policy on the administration of maternity leave based on the 2008 staff handbook. This caused the complainant to experience a sizeable loss in pay and pension/life cover.
6 LEGAL FRAMEWORK TO DECISION
6.1 I have considered each of the parties submissions in this case. There was a large volume of written submissions and oral evidence .It would have been helpful for the Tribunal to have heard from Ms L.S., the line manager in this case .I find that there was a continuum of events which led to the last reported date of alleged discrimination on 3/12/2013, which framed the complaint to the Tribunal .This continuum incorporated the initial specified purpose contract and the first period of maternity leave onwards .I find that the respondent was on notice of these facts .I find that :
· The specified purpose contract was open ended and I cannot adduce proof that the project either terminated through lack of funding or actual completion of the process. ATHENS was a subsidiary of CERVIVA and work continued under this project. Conversely, there was considerable energy extended by NCR initially to seek a continuation of funding for ATHENS. I appreciate that it was strand 2 of the project, but I find that it was inextricably linked to part 1, the purpose for which the complainant was hired in March 2010. I find it unusual that NCR lost interest in strand 2 for the want of compilation of the necessary submissions.
· The respondent resiled from the second strand funding and instead sought to lay the blame for the omission on the complainant who was on sick leave from August 2013 prior to her commencement on maternity leave on October 14th. Crucially, NCR did not conduct a fair appeal of the redundancy. They did not exercise some of the considerable discretion open to them on extension of tenure given that their earlier position had been that the complainant was protected by 9(2) of the fixed term legislation .They fell far short of the mark here.
· There was a variance in the application of the maternity leave clause from the Staff Handbook.
· The respondent could not dispute the complainants contention that the earlier renewal of contract in 2013 only occurred because they weren’t aware of the pregnancy due date.
· No effort was made by either party to either seek or apply the protections afforded by the national agreement. This is extraordinary when I consider that the complainant clearly increased her hours in line with HRA.
· The claimant was clearly engaged in extracurricular work on the NCR web site in addition to her own research. There are emails from the line Manager which confirm an open ended approach with regard to the contract extension and the position of “wait and see” was relied on by NCR.
· The claimant made it clear that she wished to be uninterrupted in her role as primary care giver, this was ignored by NCR, who repeatedly pursued her for completion of work during her maternity leave.
· The respondent relied on recourse to statutory redundancy without due regard for the complainants pregnancy .They saw it as a natural end to a contract. NCR raised Ms Mc Sherry’s expectation that she could be rehired post redundancy, then resiled from that also. It seemed a case of “out of sight , out of mind” Once Ms Mc Sherry was not available to NCR either through sick leave or maternity leave , NCR did not accept that they had any role in protecting her interests outside the payment of a statutory redundancy lump sum . The delay in responding to the final appeal by 10 weeks was extremely poor practice.
The Equality Tribunal, in the first instance and the Labour Court on appeal have both grappled with the concept of whether a complainants pregnancy influenced a respondent to select her for redundancy while on maternity leave in Trailer Holdings and Deborah Healy [5],O Brien v Persian Properties Ltd[6] and Rottapharm ltd v Beata Nowakowska[7]
In a line of authorities starting with the decision in C-177/88,Dekker v Stichting Vormingcentrum voor Junge Volwassenen[1990] ECR 1-3841 [8]the Court of Justice of the European Union (formally the ECJ) has made it clear that since pregnancy is a uniquely female condition any adverse treatment of a woman on grounds of pregnancy is direct discrimination on ground of her sex. Thus, the law of the European Union recognises the reality that to treat a woman less favourably because she is pregnant is to discriminate against her because she is a woman. That can never be justified. Issues such as disruption caused to an employer’s business or costs associated with accommodating a pregnant woman in employment are, as a matter of Union law, wholly irrelevant.
Since the decision in Dekker the protection afforded to pregnant women in employment has been strengthened considerably in the case law of the CJEU and in the legislative provisions of the European Union. Equality on grounds of gender is now expressly guaranteed by Article 23 of the Charter of Fundamental Rights of the European Union. Article 33.2 of that Charter also incorporates the prohibition of dismissal on grounds of pregnancy established in jurisprudence of the CJEU. It provides: -
To reconcile family and professional life, everyone shall have the right to protection from dismissal for a reason connected with maternity and the right to paid maternity leave and to parental leave following the birth or adoption of a child.[9]
6.2 Refusal to extend a fixed term contract has been found to constitute discrimination in a growing body of EU case law Teledanmark ALS v Handels org Kontorfunktionoernes Forbund [10]and Melgar v Ayuntamento de los Barrios[11]
Directive 92/85/EEC (the Pregnancy Directive) provides a comprehensive legal framework in which special protection is afforded to the safety health and welfare of pregnant women in employment. Article 10 of the Directive is of particular and far reaching significance. It provides: -
In order to guarantee workers, within the meaning of Article 2, the exercise of their health and safety protection rights as recognised under this Article, it shall be provided that:
1.Member States shall take the necessary measures to prohibit the dismissal of workers, within the meaning of Article 2, during the period from the beginning of their pregnancy to the end of the maternity leave referred to in Article 8 (1), save in exceptional cases not connected with their condition which are permitted under national legislation and/or practice and, where applicable, provided that the competent authority has given its consent;
2. If a worker, within the meaning of Article 2, is dismissed during the period referred to in point 1, the employer must cite duly substantiated grounds for her dismissal in writing;3.Member States shall take the necessary measures to protect workers, within the meaning of Article 2, from consequences of dismissal which is unlawful by virtue of point 1.
The importance of this latter provision, in deciding cases within the ambit of the Equal Treatment Directive, has been emphasised by the CJEU on a number of occasions. Most recently in case C-232/09Danosa v LKB Lizings SIA[2011] CMLR 45, at 60,[12] the Court said: -
“It is precisely in view of the harmful effects which the risk of dismissal may have on the physical and mental state of women who are pregnant, have recently given birth or are breastfeeding, including the particularly serious risk that pregnant women may be prompted voluntarily to terminate their pregnancy, that, pursuant to Article 10 of Directive 92/85, the EU legislature provided for special protection for women, by prohibiting dismissal during the period from the beginning of pregnancy to the end of maternity
6.3 Article 2( 2) of the Recast Directive [13] provides that women on maternity leave retain their employment rights .Article 15 allows a return to work in the same job.
7 DECISION
7.1 I have concluded my investigation and in accordance with s79(6) of the Acts , I find that NCR failed to protect the complainant in her pregnancy and subsequent maternity leave . She was a public sector employee and was entitled to that protection rather than an institutionalised reliance on avoidance of permitting a fixed term contract evolve into a contract of indefinite duration .I find that NCR was unreasonable towards the complainant and that she has established a prima facie case of discrimination and discriminatory dismissal on the grounds of both gender and family status and the respondent has failed to rebut it .The Respondent dismissed the Complainant in circumstances amounting to discrimination on grounds of family status and gender in terms of sections 6(2) and 6(2A) of the Employment Equality Acts, 1998- 2008 and contrary to section 8 of those Acts.
7.2 Section 74(2) of the Acts states that victimisation occurs where dismissal or other adverse treatment of an employee by his employer occurs as a reaction to a complaint of discrimination made by an employee to an employer. The complainant was uncomfortable with her employers intrusion into her first maternity leave. She made it clear that the NCR could not rely on her good will during her second pregnancy. I find that the inconsistent variance on payment of maternity leave in full minus social welfare coupled with the undue pressure placed on her to take the lead on a second stream funding initiative despite her reported sick leave and maternity leave constituted adverse treatment.
I also find that the complainant experienced a withdrawal of cordial working relations following the disclosure of her second pregnancy, this culminated in a very unusual, unfair handling of the grievance and subsequent appeal where the complainants pregnancy was not respected and extended delays surrounded all matters pertaining to security of employment. There was an opportunity for NCR to undertake internal brinkmanship in terms of the management of contract extensions either under the National Agreement or through the completion of the second stream funding. Instead, the over reliance on the institutionalised practice of avoidance of transitioning researchers to contracts of indefinite duration served as a roadblock . Having evaluated all the evidence, I am satisfied that the complainant established facts of a sufficient significance to raise a presumption of victimisation and therefore the probative burden is transferred to the respondent. The respondent has not succeeded in rebutting the presumption .The respondent victimised the complainant within the meaning of s.74(2) of the Acts.
8 REDRESS
8.1 In awarding redress, I am cognisant of Article 25 of the recast Directive which states penalties must be effective, proportionate and dissuasive[14].
In accordance with s.82 of the Act, I order the respondent pay the complainant:
(a) €35,138 (equivalent of 9 months’ salary) in compensation for the discrimination and discriminatory dismissal,
(b) €11,712 in compensation for the distress caused by victimisation,
(c) I also order that the NCR undertakes an immediate review of the utilisation of fixed term contracts with an emphasis on maximising the opportunity for contracts of indefinite duration rather than the short termism of recourse to redundancy, where the state loses skilled researchers in the cutting edge area of cancer research,
(d) The staff handbook should be amended to take account of the supremacy of EU legislation in the management of fixed term contracts in pregnancy[15], and
(e) Finally, in accordance with s.82(1)(e) of the Acts I also make the following order: that the respondent engage with an external expert in the area of Employment Equality law to carry out a programme of training with respect to the Employment Equality Acts within 3 months of this decision .
This award represents compensation for infringement of the complainants’ rights under employment equality legislation in relation to discrimination and does not include any element relating to remuneration and is therefore not taxable.
___________________________
Patsy Doyle
Adjudication Officer/Equality Officer.
December 2015
[1] Haddington Road Agreement, July 2013.
[2] LCR 20029
[3] UCCv Bushin [2012]IEHC 76
[4]
Trailer Care Holdings Ltd v Deborah Healy EDA 128
[5] Supra 4
[6] Julie O Brien v Persian Properties Limited, trading as O Callaghan Hotels DEC-E2012-010
[7] Rottapharm ltd v Beata Nowakowska EDA 159
[8] C-177/88,Dekker v Stichting Vormingcentrum voor Junge Volwassenen[1990] ECR 1-3841
[9] Supra 5
[10] C-109/00{2001} CC-1- 2785
[11] C 438/99 [2001]ECR 1 6910
[12] C-232-09 Danosa v LKB Lizings S/A [2011] CMLR
[13] Recast Directive Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation Official Journal L 204 , 26/7/2006 P. 0023 - 0036
[14] Supra 13
[15] Note Fighting Discrimination on Grounds of Pregnancy, Maternity and Parenthood , P138 Frances Meenan on Ireland .EU Publication The Application of EU and National Law in practice in 33 countries, November, 2012