EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2015-148
(Represented by Richard Grogan & Associates Solicitor)
(Represented by Arthur Cox & Co Solicitor)
File reference: EE/2014/141
Date of issue: December 2015
HEADNOTES: Employment Equality Acts Sections 6 and 8 – Civil status-Family Status – Race Discrimination
1.1 This dispute concerns a claim by Ms Elijosiene that she was discriminated against by the company on the grounds of civil status, family status and race in that, on her return from maternity leave she was not appointed to a post equivalent to the one she left contrary to the requirements 6 (2) of the Employment Equality Acts in relation to discriminatory dismissal in terms of sections 8 of the Acts.
1.2 The complainant referred her claim to the Director of the Equality Tribunal on 17 March 2014 under the Employment Equality Acts. On 20th July 2015, in accordance with his powers under section 75 of the Acts, the Director delegated the case to me, Pat Brady, 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.
1.3 Submissions were received from both sides and in accordance with Section 79(1) of the Acts and as part of my investigation I proceeded to a hearing on July 30th. The parties were given the opportunity to submit further information after the hearing but nothing was received.
1.4 This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 83 (3) of the Workplace Relations Act 2015.
2 COMPLAINANT'S SUBMISSION
2.1 The complainant started work for the respondent on 15th June 2009 as an Accommodation Supervisor. She was promoted to Deputy Housekeeping Manager and subsequently resigned this position on August 9th 2012 and reverted to her previous position.
2.2 While there is a requirement in the Contract of Employment that, inter alia, she undertake cleaning functions she says that this only happened in the course of a temporary deployment to a sister hotel for a period of three weeks.
2.3 On her return from maternity leave she was assigned to a position that included cleaning duties which she saw as a diminution of her role and a denial of her right to return to an equivalent position.
2.4 The complaint under the race ground was withdrawn at the hearing.
3 RESPONDENT'S SUBMISSION
3.1 The respondent states that the complainant has failed to identify comparators and has no prima facie case.
3.2 The respondent also says that the company has a positive policy in respect of its female employees and on a previous occasion the Claimant was promoted on her return from maternity leave and at present is being treated more favourably by being on a higher pay grade than a comparable colleague. She has had three periods of maternity leave and on no previous occasion was there any adverse action on her return.
3.3 It also points out that the current ‘mix’ of duties is in accordance with her Contract of Employment. It points to the example of a colleague in the same grade whose duties are of a similar nature. (The claimant says this has always been her mix of duties.)
3.4 It submits that the true reason for the change was a drive for greater efficiencies in the business which required more flexible working practises. Evidence of this was given by witness SK. She says that this was widespread following the appointment of a new manager.
3.5 It also submitted that, on the basis of the case law, there is no absolute entitlement to return to the exact same duties as were carried out before the maternity leave and the duties allocated to the claimant were reasonable. The Claimant was not demoted in any way and remains on her salary pre-maternity leave.
4 FINDINGS & CONCLUSIONS OF THE EQUALITY OFFICER
4.1 I have to decide if the complainant was subjected to discriminatory treatment on the grounds of family or civil status, (the race ground having been withdrawn). 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 I do not find that the claimant established a prima facie case. It is not sufficient to identify changes in the absence of evidence that this adversely affected the claimant and breached the specific provisions of the act alleged. Accordingly the burden of proof fell on the claimant.
4.3 I find that while the claimant hardly (apart for a period of three weeks) undertook actual cleaning duties, it is an established part of the role of her grade and is within the terms of her contract of employment.
4.4 I also find that the alteration in the claimant’s duties fell within the range of reasonable flexibility which might be required of an employee in a process of business reorganisation and that hers was part of a general process of change within the hotel which would have happened in any case changes and represents the proximate cause of the change and survives the ‘but for’ test.
5.1 I have investigated the above complaints and make the following decisions in accordance with section 79 of the Acts that:
· There was no discriminatory treatment in breach of the act on any of the grounds claimed and I dismiss the claim.