EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2016-158
(Represented by Kiwanna Ennis BL instructed by
Sherwin O’Riordan Solicitors)
(Represented by Arthur Cox Solicitors)
File reference: et-151140-ee-14
Date of issue: 22 December 2016
1.1 This complaint concerns a claim of discriminatory treatment on the grounds of the complainant’s pregnancy. This includes complaints of discriminatory dismissal as well as not having a fixed-term contract renewed and not being informed of other vacancies. The complainant asserts that the discrimination occurred on the grounds of gender and family status. The complainant was a Senior Product Manager for Mobile and the respondent is a telecommunications company.
1.2 The complainant referred a claim to the Equality Tribunal (as it then was) on the 21st November 2014 under the Employment Equality Acts. On the 29th December 2015, in accordance with his powers under section 75 of the Employment Equality Acts, the Director delegated the case to me, Kevin Baneham, 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. In accordance with Section 79(1) of the Employment Equality Acts and as part of my investigation I proceeded to a hearing on the 14th January 2016. A second day was required to complete the hearing and this took place on the 1st February 2016.
1.3 The complainant was in attendance at the hearing and represented by Kiwanna Ennis, BL instructed by Sherwin O’Riordan solicitors. Arthur Cox solicitors represented the respondent. A number of witnesses attended for the respondent and three gave evidence. They were Audrey Lyons (referred in this report as the ‘HR advisor’), Brian Martin (the ‘Line Manager’) and Hugh O’Brien (the ‘HR Director’). Two employees of the respondent are referred to in the report on a number of occasions and as they did not attend the hearing or give evidence, they are referred to by their job titles: the Director of Product & Services and the team leader/hiring manager.
1.4 This decision is issued by me following the establishment of the Workplace Relations Commission on the 1st October 2015, as an Adjudication Officer who was an Equality Officer prior to the 1st October 2015, in accordance with section 83(3) of the Workplace Relations Act, 2015.
2. Submissions and evidence of the complainant:
2.1 The complainant asserts that she was subject to a discriminatory dismissal from her employment due to her pregnancy. She went on maternity leave on the 11th July 2014 and her employment came to an end on the 20th November 2014. She says that her fixed-term contract, which ended on the 20th November 2014, was not renewed because of her pregnancy. She also says that she was not furnished or given access to vacant positions during her maternity leave. The complainant commenced employment with the respondent on the 21st November 2011 on a fixed-term contract of three years. Her role was as a “Senior Product Manager”. The complainant states that her basic salary was €74,000 per annum and that she also received an employer contribution to her pension, private health insurance and a contractual bonus. The complainant dealt with the regional entreprise and government segments and there had been no previous mobile offering from the respondent for these sectors. She joined a new team and was advised by the then Director of Servicesthat this area of the business was growing and increasing head count. She previously had 12 to 14 years of experience in pure product development roles, specifically in data. In her new role, she said that there was a requirement to define the mobile product offer and this involved a fluid and flexible skillset.
2.2 The complainant outlined that she had been on maternity leave between the 25th January 2013 and the 27th September 2013. She informed the respondent of another pregnancy in March 2014 and returned forms relating to her maternity leave in the middle of May 2014. She states that the attitude of the respondent towards her changed after this announcement. On the 22nd May, she was called to attend a meeting with the Line Manager and theDirector of Product & Services, where she was informed that her fixed-term contract was not being renewed on its expiry in November 2014. Also at this meeting she was informed that there were no performance issues regarding her employment and that two new roles were being created in the team. She was informed that the respondent was advertising externally for these roles and that the required skillset was not available internally. She was informed that she did not have the skillset for the new roles and that she could apply for them. The complainant said that she did not understand the basis of the respondent’s conclusion regarding the lack of skills being available internally. She had been shocked and that it took time for her to digest this development. Also, at the meeting of the 22nd May 2014, the complainant was informed that a named colleague, a peer, had been appointed as her line manager. She had not been informed of a vacancy for such a position. The complainant outlined that she was a member of the core team that evolved products in the mobile data sector. There had been a particular emphasis within the respondent on the business area. There was a strong business case for increasing head count in the area and she had expected to have her contract renewed. She pointed to three colleagues who all had their contracts renewed at this time. She outlined that there was a well-established practice within the respondent that an employee whose fixed term was coming to an end would have their contract renewed for one year, or to be offered a contract of indefinite duration, provided there was a business need for the role and no performance issues with regard to the individual employee. This practice was followed in the case of other employees whose fixed terms were coming to an end.
2.3 On the 23rd May 2014, the Director of Product & Services gave a presentation on the new structure in the mobile team, identifying the two new Senior Product Manager Mobile roles as well as a Senior Product
Manager Small & Medium Business. The complainant referred to a
particular slide in the presentation that depicts a flow chart of the
business organisation. It identifies the new roles to be created and using
italics to identify current staff members on contract. On the 4th June 2014, the complainant sought the job description of the SPM Small & Medium Business role. While this had been advertised previously, she had not applied for the role as she had not yet been told that her contract was not being renewed. She was informed that the job was already at offer stage, but it later transpired that this was not the case as it was offered a number of weeks later to a contractor, who was then given the permanent role. The complainant asserts that that the respondent did not want to wait to the end of her maternity leave to fill the role. The complainant outlined that she received the job specification of the new SPM Mobile roles in the week following both the presentation and meeting. The Director of Product & Services has mentioned the urgency in filling the roles. Commenting on the job specifications, the complainant said she was struck about how clearly aligned they were with her role. In fact, her current role had required more experience than the level of experience stated as necessary in the job specifications. She said that she could not understand why she had been told that she did not have the necessary skillset. The new specification refers to developing indoor coverage solutions and this was already in her portfolio. She was responsible for the doubling of the project and in this regard, worked with vendors and developed processes. Commenting on the reference to LTE, she said that she already had experience in developing technology in this area. Commenting on the data charging specification, she said that she had extensive experience of billing platforms. She was also responsible for the small business billing platform, and had brought this project to market. She consulted with her named former line manager, who felt that it was a nonsense that she could not do the job. She said that she was already doing the job described in the job description.
2.4 The complainant sought to meet the Line Manager to discuss her future position. A meeting was scheduled for the 5th June 2014. She had hoped to understand the situation more clearly and did not want to take a formal grievance. She had arranged for a HR support to accompany her, but when they attended the meeting, the HR Director said that the meeting could not proceed. He said “this isn’t happening”, referring to the presence of a HR support. The HR support was escorted out of the respondent’s place of business and the meeting did not proceed. Following this, the complainant emailed her Line Manager on the 9th June 2014 setting out her concerns about the non-renewal of her contract of employment and expresses her wish and intent to work in meaningful role in the respondent. This is a detailed email where the complainant addresses her current fixed-term contract, the possibility of this ending as well as the SPM Small & Medium Business role and the new roles to be created in her team. The complainant said that she then went on a period of pregnancy-related sick leave followed by annual leave. On her return from annual leave on the 20th June 2014, she collected letters sent by the respondent, dated the 13th and 16th June, requesting her to attend the respondent’s Chief Medical Officer in relation to the 2.5 days of sick leave taken. This was unusual as her contract provides that such a referral shall be made on the third consecutive day of sick leave. She queried the basis for the referral and was not aware of medical referrals occurring in similar circumstances. In an email, the respondent says that the referral was based on the complainant’s reference to stress in the email of the 9th June 2014. Also on her return, she found that key projects had been reassigned to others in the team. She was informed by the respondent that this was in anticipation of her forthcoming maternity leave. The complainant said that she had wished to ensure a smooth handover to colleagues, rather than the abrupt reallocation of tasks as had occurred in her absence. This also meant that her workload evaporated. She said that she would normally receive over a hundred emails in a day; she now only received one email a day. This continued until she went on maternity leave. In respect of the business conference, the complainant said that invites were issued on the 11th June to all employees at a time when she was on annual leave. She was belatedly told that she could go to the conference scheduled for the 3rd July. She said that a corporate video had been taken, which featured her team but she was not included in the footage of the mobile team.
2.5 The complainant outlines that she received an email of the 23rd June 2014 from her Line Manager, in reply to her email of the 9th June. In this, the respondent explained that the new Senior Product Manager roles were being introduced to develop more complex mobile network based data product and services. The email further states that the complainant does not have the experience, skills and capabilities for these roles but the interview process would allow her present her attributes for such a role. Commenting on this email, the complainant said that she was part of a team that was delivering to a changing market. She could not understand the points the respondent made in the email and its description of her role. She said that the advertised roles represented the role she was doing. The complainant responded by email of the 4th July and in this email also raises the SPM Small & Medium Business role. The complainant said that she had been told that the Small & Medium Business role was on offer, but had since learnt from a colleague that this role was only later offered to an internal candidate. The Line Manager responded on the 9th July, asking the complainant to attend a meeting and suggests that she avail of the grievance procedure. The complainant takes issue with this as she was due to go on maternity leave on the 11th July. The complainant outlined that she met with the Line Manager and the HR Directoron the 10th July to discuss the new roles and her position. She was informed that the roles were not beyond her scope and the respondent emphasised the need for an immediate start in both the roles. Following this, the complainant applied for the roles. They undertook to inform her of vacancies occurring while she was on maternity leave, but this occurred only once, on the 14th July.
2.6 The complainant said that she gave birth on the 15th August 2014. The invitation to interview for the SPM Mobile role arrived one week later. The complainant attended the interview on the 25th September. She said that she felt that she had done a good interview, especially given the circumstances. The interview was conducted by the team leader/hiring managerand the HR advisor. Commenting on the notes of the interview, she said that she was surprised by the comment of her referring back to previous examples she had given. The question regarding “new or complex data” did not arise at the interview. She was also surprised by the impact mark of zero with regard to her experience, as she felt that she had stood out. The successful candidate was an internal candidate and came from a different part of the business. The HR advisor contacted the complainant around the 14th November to say that she was unsuccessful and that theteam leader/hiring managerwould ring the following week to give feedback. This follow-up call was never made. The complainant outlined that she did not apply for other roles within the respondent as she believed that there was a pre-determined decision on the part of the respondent not to employ her. She received a redundancy payment in February 2015 of €4,200 which she had retained. The complainant had refunded to the overpayments in salary made to her by the respondent. Her P45 was issued in September 2015. The complainant outlined that she had been in about 20 processes to find other work since the end of her employment with the respondent. A number had gone to offer stage, but not closed. She said that she believed that there had been reputational damage arising from the end of the her employment with the respondent. She referred in particular to the reaction of a named hiring manager of a mobile operator as well as the fact that a positive process with a large employer had not closed. The hiring manager of this employer had formerly been with the respondent. She also outlined that there were documents not sent to her following her data access request, in particular email correspondence. This matter had been referred to the Data Protection Commissioner. The complainant said that she had not brought a victimisation claim.
2.7 In cross-examination, the complainant accepted that her contract of employment stated that its duration was for three years and subject to a fixed-term. She also accepted that similar references were included in the Service Agreement. It was put to the complainant that she understood the fixed-term nature of the role; she accepted this. The complainant acknowledged that the mobile phone area was susceptible to change and was competitive. She said that it was continuously evolving and was especially aggressive at present. The fact that certain corporate acquisitions had occurred had changed the market. There was a requirement to provide newmobile phone offerings to customers. While the landscape was evolving, she said that this had been the case throughout her career. It was put to the complainant that a recent merger between two large competitors posed a significant challenge; she replied that this was no bigger a challenge than the move by another large competitor from fixed line into mobile. The complainant was asked what percentage of her role related to fixed line; she replied that her role was mainly mobile, in particular billing. She did not have specific knowledge of fixed, but there was strong convergence between fixed and mobile. The complainant accepted that she had been paid full salary during her first period of maternity leave, as well as bonus and benefits. On her return from the first period of maternity leave, she said that there had been good will towards her and there had been no substantial change in the priority given different projects. It was put to the complainant that neither the previous line manager, nor the HR department, had provided her with an undertaking regarding her future with the respondent; she replied that the previous line manager had described the mobile business area as a growth area. She said that on the 22nd May 2014, she was informed of the two Senior Mobile roles, but there was no reference to the SPM Small & Medium Business role. She had pointed out to the team leader/hiring manager the overlap between her role and the new roles, he replied that while there was overlap, her role was product-based while the new roles were business oriented. It was put to the complainant that she had been aware over a number of weeks of the restructuring of the SPM roles. She accepted that the SPM Small & Medium Business role had been advertised. She had had to request the job specification when she sought to apply for the role because the job specification had by then been taken down. It was put to the complainant that an offer was made for the job on the 10th June. It was put to the complainant that jobs were advertised on an intranet; she agreed that she could search for roles after the news of the non-renewal was given to her on the 22nd May.
2.8 In respect of colleagues who had been on fixed-term contracts, the complainant outlined that one of the colleagues she had named had been in marketing and moved to a different area within the business. A male colleague was in a different team in the business mobile area. Another colleague was the senior product manager in the Product & Service Team. The complainant was asked about the team leader/hiring manager. She said that when she joined the business, they had parity in role and responsibility and reported to the same named manager. He was a permanent employee. It was put to the complainant that his promotion was recognition of his contribution; she said that this colleague and another colleague had taken on responsibilities, but a new Head of Mobile role should have been advertised. The respondent put the contents of the job description of SPM Mobile role to the complainant. It referred to the fourth paragraph of the ‘Objectives’ that refers to the role including evolution of data products with LTE (Long-Term Evolution)and leveraging the respondent’s investment in the area. The key tasks outlined in the first two subparagraphs refer to ‘project management’ and ‘working with the Chief Technology Office’. The first subparagraphs of the Key Performance Indicators section refer to the role taking the “lead on” projects. Other key performance indicators include the development of new products on time and within budget as well remediating product process issues. It was put to the complainant that these aspects of the new role were not part of her existing role; she replied that her original job description was broad as she had entered the team at an early stage. It had initially been a fluid role and she had worked on coverage solutions. LTE was not there at the time. She acknowledged that the wording in the job specifications was different. It was put to the complainant that the KPIs in relation to innovation and revenue were different; she replied that within the business there had been a quarterly and annual roadmap planning to include innovation and revenue.
2.9 The complainant acknowledged that she had requested a copy of the grievance procedure. In advance of the meeting of 5th June 2014, she had emailed the Line Manager to ask to bring a HR support with her to the meeting. She had not been aware of the policy not to bring outside people to such meetings. Commenting on the email of the 9th June, the complainant said that it was her understanding that the practice was that a staff member would have a fixed-term renewed where there was a business requirement for the role and where there were no performance issues. It was put to the complainant that there was only one role; she replied that her understanding that there would be two SPM Mobile roles. With reference to the certified sick leave, it was put to the complainant that her email mentioned stress and she was referred to the respondent’s policy on the issue of stress. She replied that she had not had any reason to know about the policy on stress. She said that the cause of the stress had been the lack of response on the part of the respondent. She said that it felt unusual to be referred to occupational health because of something said in an email. She had never said at the meeting that she was unwell. In respect of the reference to more complex requirements of the new roles, the complainant replied that the phrasing was ambiguous as the roles were within the realm of her capabilities. The complainant said that there had been three weeks between the end of her annual leave and her scheduled maternity leave. It was not standard procedure to allocate roles during periods of annual leave. Where a handover was required, this was done in consultation. It was put to the complainant that her duties were reassigned as cover over the annual leave; she replied that this was not usual and it was up to each manager to ensure that the work was done during annual leave. There would usually be no new point of contact during annual leave. She acknowledged that roles would be allocated during maternity leave.
2.10 The complainant was asked about other roles in the respondent; she replied that she had applied for the SPM Mobile role. She had not applied for another named role as this was a six-month contract. It was put to the complainant that the minutes she had exhibited of the meeting on the 10th July 2014 were her minutes and were not agreed. The complainant commented that the HR Director had said that vacancies would be emailed to her on a weekly basis and there were only two such emails, one on the 9th July and a second in November. She had no access to the
respondent intranet. In respect of the conference video, she acknowledged that the Line Manager had also not featured in the footage. It was put to her that the filming took place during her annual leave; she said that she was not aware when the filming had taken place. In respect of the interview, it was put to the complainant that the team leader/hiring manager, who had conducted the interview, was no longer an employee of the respondent. The complainant described the interview as not being technical in nature. The respondent put the comments made to the six role specific questions, which included an acknowledgement of her strong answers and those where her responses were not as strong. The complainant replied that on reflection she would have liked to have given more examples, if that was the respondent’s feedback. She said that she had a five-week old baby at the time. The complainant said that she had not been informed of other roles over her maternity leave. She had applied for all roles available to her, up to the November email. She did not accept that there was a delay in her applying for the SPM Small & Medium Business role.
2.11 In closing submissions, the complainant outlined that this was a claim advanced on the grounds of gender and family status. It was submitted that the dismissal of a pregnant employee establishes a prima facie case of discrimination. It was established that the grounds for dismissal must be provided to the employee in writing. With reference to the authority of Mulcahy v Minister for Justice, Equality and Law Reform  13 E.L.R. 12, this did not take account of section 85A of the Employment Equality Acts, since inserted. It was submitted that the complainant’s contract was not renewed because of her pregnancy. With regard to the CJEU authority of Melgar v Ayuntamiento de Los Barrios C-438/99, this does not distinguish between the number of contracts an employee has; one fixed-term contract is sufficient. The evidence was that the complainant had understood that her contract would be renewed unless there were any performance issues. She had received praise from the Line Manager. She worked in a growing segment of the respondent. The respondent authorisation form refers to her as “permanent”. It was further submitted that the respondent decided to terminate the complainant’s employment after it was informed of her pregnancy. The complainant was involved in mobile data and this was an evolving project. Her job description was generic and would have applied to a mobile data role. The comments referring to the new role as “complex” were made to discourage her from applying for the new roles. The interview notes do not support that she was incapable from doing the role. The complainant has obtained equal scoring on the technical role-specific questions. The successful candidate had been deemed acceptable as “support” but he had not been deemed to be a leader. The respondent’s HR advisor had not been able to explain why the successful candidate had achieved a ‘+1’ score for experience while the complainant had scored zero, with “nothing standing out”. It was submitted that the only person affected by the restructuring up to December 2015 had been the complainant when one male had been recruited for her maternity leave and one male recruited afterwards. No feedback had been given to her regarding the interview and the outcome.
2.12 In further closing comments, it was submitted that there had originally been two SPM Mobile roles and it was clear from the email of the 17th November 2014 that when the first role was filled, there was still a role outstanding. By the time of the email, the successful candidate had accepted the position. It was submitted that the second role had not been filled because of this pending Employment Equality case. The complaint had been lodged the day after the end of the complainant’s employment. The referral to the CMO had been overkill and there were no other examples of such a referral taking place for such a short absence. The manner in which the handover was conducted meant that the complainant had no work to do for three weeks and she was excluded from the running of the business. This experience differed from the process before the complainant’s first maternity leave when she was involved in the handover. In respect of the conference, the complainant was not featured in the footage and only invited to the event at the last minute. The complainant outlined that the non-renewal of the complainant’s contract of employment amounts to discrimination. The differences in the complainant’s role and the new role were not borne out by the evidence. There was also no evidence of the value added of the successful candidate. The complainant also referred to the evidence regarding the SPM Small & Medium Business role; she had sought information about the role to be told that it was already at offer stage. It had been established in evidence that the interview only took place on the 6th June.
3. Submissions and evidence of the respondent:
3.1 The respondent denies the allegations of discriminatory treatment and discriminatory dismissal. It is submitted that the complainant’s employment came to an end in accordance with the terms of her fixed-term contract. It outlined that in or around May 2014, it engaged in a restructuring of the Products division in the Business Group and this was implemented through various management appointments. This allowed the respondent to renew and intensify its focus on mobile data products. Elements of the complainant’s role would be incorporated into the new roles but there would also be a particular emphasis on mobile data products. It was decided that the role held by the complainant would be made redundant at the end of the fixed-term contract.
3.2 The HR advisor gave evidence. She said that she then worked in the respondent’s recruitment team and was responsible for interviewing candidates. In respect of the SPM Mobile role, she had interviewed for one mobile role only. The competencies were included in the role profile and it was for the hiring manager to ask the technical questions. The scoring matrix was ‘1’ to ‘4’, with ‘4’ being the highest score. In respect of the complainant’s interview, the HR advisor said that her interview was very strong and that she came across very well. It was unusual for the complainant to take notes during the interview. She said that she had detected hostility between the team leader/hiring manager and the complainant, who had directed answers to her and not to the team leader/hiring manager. The complainant had also referred back to examples as she given earlier in the interview. She had scored ‘2’ in three technical questions. Nothing stood out from the complainant’s interview and she was awarded a score of 26. The HR advisor referred to the email of the 7th November 2014 where the candidates are ranked. The first placed candidate performed very strongly and scored 31. The second placed candidate scored 28 and was given an impact rating of ‘1’. She acknowledged that she had described his candidacy as “support rather than leader”. She said that there was no deviation in the questions asked at interview and no questions regarding gender or family status. She said that she had not been contacted for a reference by or on behalf of the complainant and nor had she been in contact with anyone else.
3.3 In cross examination, it was put to the HR advisor that she had also recorded “answered in previous” in respect of comments made by the first-placed candidate. The HR adviser referred to the tone in the complainant’s answers regarding examples and acknowledged that the notes do not include any reference to her attitude. It was put to the HR advisor that she was aware of the history between the complainant and the respondent; she replied that she knew her position was finishing, but she was not sure that she had been aware of the complainant’s efforts to raise her situation. She said that she thought that the first two placed candidates were male. The first placed candidate scored highly because of his mobile experience but she had a concern about his people management skills. She said that the score given by the panel was a single, combined score. While the team leader/hiring manager was senior to her, they were separate managers. It was put to the HR advisor that candidate the second-placed candidate had been awarded an impact rating of ‘1’ for experience, but this was not consistent with the comments attributed to this candidate. It was submitted that the comments of “lack drive” and “research not clear” were not consistent with this mark. She replied that he had experience in mobile. She said that she was only aware of one role to be filled in this recruitment process.
3.4 The Line Manager gave evidence. He outlined that he worked in the Business Product Management function and was head of portfolio development and head of virtualised services. At the time of the claim, he was managing fixed voice and was developing unified communications beyond just voice. He was also responsible for mobile product management. He was the complainant’s line manager. In April 2014, the Director of Product & Services was appointed to head the development of 4G and announced significant change to the business. Following this, the Line Manager appointed a named colleague (the team leader/hiring manager) as team leader. At this time, the complainant raised her contract of employment and asked for clarification. He replied that there was a need to focus on mobile data as this was what the customers were focusing on. The respondent needed specialist skills in the mobile data area and skills in network-based services. He had communicated with the complainant in the month of May regarding the non-renewal of her fixed-term contract. Comparing the complainant’s existing role and the new role, the Line Manager said that the complainant’s role was not a mobile-specific role and included the speciality of voice. The role covered all teams and was part of his predecessor’s vision of generalist sectionspresenting options for supervising managers. The new role was a data role, with some generic business related responsibilities. It was a role that related to mobile data and dated-based network services. The reference in the job description to “visionary” was a reference to the need to monetise the investment in 4G. The restructuring created new roles, but it was unclear how many would be created. Initially, two roles had been envisaged, but only one was later approved. Approval was required by the Chief Executive Officer, the Chief Financial Officer and the head of Human Resources. Commenting on the comparators raised by the complainant who had had their contracts renewed, the Line Manager said that he had no previous experience of someone coming to the end of their fixed-term and said that people quite often leave or change section at the end of their contract.
3.5 In respect of the meeting with the complainant on the 22nd May 2014, the Line Manager said that he explained the reasons for the non-renewal of her fixed term contract and informed that she was welcome to apply for alternative roles. He outlined that the generic role done by the complainant was gone and no-one was now doing that role. The move was now to have specialists, who could also take on generalist roles. The two envisaged SPM Mobile roles later became one. The Line Manager did not know when this happened between late May and August/September as he was not responsible for such decisions. With regard to the email of the 30th May, the Line Manager said that he had understood the reference in the email to a HR support to be an internal advisor. He had forwarded the email to the HR Director, but he only became aware that the HR support was external at the time the meeting was scheduled to commence. He then said that the meeting could not proceed. In respect of the email of the 9th June, the Line Manager outlined that he became concerned as both a manager and a person at the complainant’s reference to being “extremely stressed”. He referred this to HR. Commenting on the renewal of fixed-term contracts, he said that while performance and role requirements were factors in assessing renewal, there was no right to automatic renewal. There were examples of people who had not been renewed or who had been downsized out. The complainant’s role had been split over various roles, but he had not managed the team at the time the complainant left. Some of the tasks, for example Blackberry or texting, were in decline or already up and running, so only required maintenance. In relation to his response of the 23rd June, the Line Manager said that the respondent viewed the complainant’s skill base as the same as the skill base shared across all its employees. They were not skills particular to the complainant. The Line Manager said that the reference to “early delivery” in the complainant’s email of the 9th June meant that the respondent had to look at completing the handover at an early stage. The handover was done by the team leader/hiring manager and not by him. Typically, a team would divide up a colleague’s duties when she was due to go on maternity leave and it would be reckless to do otherwise. He commented that the complainant had not advanced a grievance about this. He said that he had also not featured in the video footage raised by the complainant. The HR Director had reiterated the reasons for the non-renewal of the complainant’s contract at the meeting of the 10th July. He stated that he had not been in communication with any potential recruiter about the complainant following the end of her employment with the respondent. He concluded his evidence by saying that the creation of the new data role was nothing to do with gender.
3.6 In cross-examination, the Line Manager said that the first reference to the complainant not having her contract renewed was on the 22nd May 2014. He accepted that in December 2013 he had told the complainant that it was great to have her back from maternity leave. This had been an extremely busy area, but there had been a strategic change of perspective in early 2014 and the incoming Director of Product & Services had changed perspectives. It was put to the Line Manager that the Senior Product Manager role had been labelled permanent in the document entitled “authorisation form for recruitment”; he replied that because the use of fixed-terms was so common, they fell within the “permanent” bracket. The Line Manager was asked who decided not to renew the complainant’s fixed-term contract; he replied that this had been a consensus decision between the team leader/hiring manager, the Director of Product & Services and him. The decision was made two weeks before the meeting with the complainant on the 22nd May 2014 and this was made after they were aware of her pregnancy. Commenting on the promotion of the team leader/hiring manager, he had been made team leader in 2013 but there had been no increase in salary at the time. He had wanted to give this colleague management experience and it was quite common for there not to be a competition. The Line Manager was asked whether two fixed-term workers identified in the organigram had remained on and he confirmed that they had.
3.7 In further cross-examination, the Line Manager confirmed that there had initially been two SPM Mobile roles and acknowledged that they had told the complainant that these roles were not within her skillset and did so as an explanation for the non-renewal of her contract. The Director of Product & Services had had the understanding that the two roles would be approved, but at the time he made his presentation of the 23rd May 2014 the roles had not been fixed. It required sign off from the HR partner, the Managing Director of the business unit, the CFO and the Group HR Director. The Line Manager outlined that the referral to the Chief Medical Officer arose because the complainant had mentioned stress and not because the period of leave had been 2.5 days. Commenting on the handover, he said that it was likely that team leader/hiring manager had arranged the handover during the complainant’s annual leave. He said that the complainant should have been consulted, but the sick leave may have impinged on this. He agreed that the handovers were done differently between the first and second periods of maternity leave taken by the complainant. Commenting of the delay in replying to the email of the 9th June, he outlined that the legalistic nature of the email meant that he had to seek advice. He had the response prepared by the time the complainant returned on the 23rd June. He did not recall a telephone call with the complainant on the 13th June. Addressing the reference in the email of the 23rd June to the requirements of the SPM Mobile role, the Line Manager said that historically mobile had been about voice and text, but data now played a much greater role, especially in business. There was an evolution towards much higher band widths and towards the convergence of technologies on mobile. It was not clear how this should be developed and also how to monetise it. The complainant was involved in pricing and bulk texting and Blackberry. These projects were not linked the development of convergence and routing. It was put to the Line Manager that the complainant had established a new billing platform, he accepted that this was the case and that this included allowing business customers view all bills online. He said that the complainant was not very network data specific. He acknowledged that this shortfall had not been raised in the complainant’s reviews and not raised with her beforehand. The complainant’s role had been divided amongst the whole team and this was consistent with the email of the 23rd June, where it refers to the role being divided between the two new SPM Mobile roles.
3.8 In relation to the conference, the Line Manager said that he did not know why the complainant was not invited as he was no longer part of the mobile team. The Line Manager did not accept that there had been a misstatement regarding the offer of the SPM Small & Medium Business role. The interview for this position had taken place in or around the 6th June and while the official process could take time, the hiring manager had quickly offered the job and did so orally. He had learnt from the hiring manager that the offer was made. It was put to the Line Manager that the complainant had enquired about this role on the 4th June and she should have been interviewed for the post on the 6th June; he replied that the complainant had been aware of the role on the 22nd or 23rd May. He said that he could not explain the email which said that the role had been filled as of the 6th June, in response to her email enquiry on the 4th June. It was put to the Line Manager that the email of the 9th July refers to two SPM Mobile roles; he replied that this had been his understanding of the situation. In respect of the notes of the meeting of the 10th July, he said that while they were broadly okay, his answer recorded for question no. 4 could have been clearer. He said that there was no plan at that stage to distribute the complainant’s role amongst the new roles. It was put to the Line Manager that if the complainant’s role had been generalist in nature, she could have taken on the mobile data role; he replied that the respondent needed specialism in mobile data and while the complainant had generalist product skills, specialist mobile data skills were needed. He said that he had not been involved in the subsequent selection process and acknowledged that there was no downsizing in this instance.
3.9 In re-examination, the Line Manager said that there had been further restructuring after the complainant left the respondent’s employment. The team leader/hiring manager had been made redundant, reducing the head count by one. A named person, previously the report on Voice connectivity, now manages voice and mobile. He had had a redundancy in his team and several contractors had been let go. He said that he had shared the new job specification with the complainant as quickly as possible. Commenting on the conversation where he told the complainant that she did not have the skillset for the new role, he said that other candidates did not have the opportunity for this direct interface regarding the skills required for the new role. He said that he had contacted specialist recruitment firms about the roles. He further said that the complainant’s shortfall in mobile data skills would not have come up in performance reviews.
3.10 The HR Director gave evidence and outlined that he had been acting HR Director between November 2014 and November 2015. Prior to that, he had been head of HR within the part of respondent that included this business unit. He outlined that the respondent provides full pay over an employee’s maternity leave minus Maternity Benefit. It also pays any bonus payment due over the period of leave. It also takes a liberal view in relation to parental leave and the respondent seeks to entice people back to work and also to join the organisation. He outlined that the respondent’s hiring policies change to suit current business needs. The designation of “permanent” in company documentation includes those on fixed-term contracts as they differ from contractors who are on a daily rate. It was well-established practice that the respondent would review a fixed-term contract in the three or six months before the end of the contract. There were three options: renewal, extension for one-year or non-renewal. The relevant line manager is asked whether the role is required long-term; if it is, consideration moves to whether there should be a one-year extension or a contract of indefinite duration. This takes account that there may be new line managers in place. The employee’s termination date is stated in the contract of employment. He outlined that the respondent ensures a fair and transparent approach to explain why a contract is not being renewed. In the respondent’s business unit, there was a practice to review roles and a new line manager might ask for an extension of time to get to know a person better or to look at a role into the future. He commented that no assurance of renewal had been given to the complainant.
3.11 In respect of the meeting of the 5th June 2014, the HR Director said that he assumed the reference in the email of the 30th May to a HR support was an internal person. When the meeting was scheduled to commence, he asked who the HR support was and when she replied that she was external, he said that only colleagues and union officials could attend such meetings. The HR support accepted the explanation and did not seem surprised. The HR Director said that he accompanied the HR support out of the building but that he did not frogmarch her out. He said that the email of the 5th June was a follow-up to the aborted meeting and a reply to the complainant’s email. She had not lodged a grievance. In relation to the reference to the Chief Medical Officer, the HR Director outlined that anyone who refers to stress is so referred whether the stress was work-related or not. The respondent had a very good CMO who is an expert in occupational health and also asks to sees employees about stress. Six employees or so are referred per year. The referral was nothing to do with the length of the complainant’s absence. Commenting on the SPM Mobile role, the HR Director said that this role ended up being a niche role, for which they had looked externally and also obtained the services of a boutique recruitment agency. In respect of the meeting of the 10th July, he said that the minutes exhibited were not agreed minutes. The respondent had spent a great deal on 4G and there was a need to monetise the investment. The new role involved going deeper in the network and was also a more technical role. It was to be less front-ended. The Business unit had taken the view that no-one internally had the skills for the new role. It was nothing personal. While the end of the fixed-term was not a redundancy, a decision was made to pay the complainant a redundancy lump-sum. The HR Director said that he recalled saying to the complainant that she would be sent details of other vacancies. He wanted to be clear that the complainant was happy to receive contact from the respondent during maternity leave. Commenting on the email of the 7th November, he said that it was usual practice for HR to email the results of an interview panel. He stated that there had been no contact with third parties regarding the complainant.
3.12 In cross-examination, in respect of the difference between the complainant’s role and the new role, the HR Director said that when the respondent restructures an area, HR is consulted. They would have asked why the complainant was not considered for the new data roles. He had asked why the complainant and others did not have the skills. As this was a new area, business mobile, the respondent had to buy in expertise. It was a technical product role and he had sought advice from the Director of Product & Services and the Line Manager. It was put to the HR Director that the role was filled internally; he replied that it had been advertised externally. He said that he had discussed the outcome of the interview panel with the HR advisor but had not discussed the individual candidates. The comments relating to the candidate who was eventually successful were put to the HR Director, in particular whether he was happy with the comments that this candidate “lacked drive” and was “a support rather than a leader”. He replied that the process was fair and the whole of the interview notes should be assessed. Addressing the reduction in the number of SPM Mobile roles from two to one, he outlined that there was a process for roles to be approved and this can take longer for niche roles. The market can change and 50% of roles do not proceed to hire. The HR Director could not recall when the decision had been made to reduce the number of new SPM Mobile roles. The contents of the email of the 17th November 2014 was put to the HR Director; he replied that the open role refers to one SPM Mobile role and this had been filled. He said that the complainant was making assumptions in saying that this was the second SPM Mobile role still open; he said that this was the same role as had been filled and that at this stage the role had not been offered and accepted. No SPM Mobile role had been filled since then.
3.13 In respect of the complainant, the HR Director said that the issue here was not performance and that the main issue had been that of technical skill. It was put to the HR Director that the complainant had scored the same in the technical category as the successful candidate; he replied that he was not surprised by the equal scoring obtained by the complainant with the two other candidates. He said that the complainant was not the only person affected by the restructuring but that she was the only person to lose her job. With respect to the meeting of the 5th June, the HR Director outlined that it was company policy that only colleagues and union officials could attend such meetings. He said that he was capable of doing the roles of advising an employee while attending for the company. In relation to the CMO referral, he said that this was not related to the length of the certified absence. In relation to the handover, the HR Director said that it was the reference to “early delivery” in the complainant’s email that led to the immediate handover of the her duties. The opportunity did not arise to consult with the complainant and she would have been involved had she been around. Commenting on the meeting of the 10th July, the HR Director said that it can take new hires 6 to 12 months to get up and running, so the complainant, even with maternity leave would have done better than any new hire. Maternity leave was not a disadvantage. It was put to the HR Director that the evidence was that Director of Product & Services and team leader/hiring managerhad said the job needed to be filled urgently; he replied that all managers expressed urgency about roles they wished filled. Once a candidate had accepted a role, the job is secure and could not be axed. He said that the complainant had six months of a head start on other candidates. The payment of the complainant’s bonus was raised with the HR Director; he replied that the bonus had not been paid at the time of the complainant’s first maternity leave but the respondent had only recently restarted paying bonuses. It was put to the HR Director that there was outstanding information due from the complainant’s data access request; he replied that the respondent had one person assigned to this role. In re-examination, the HR Director agreed that the job featured in the email of the 17th November 2014 could have been the same job as had been filled in the process the complainant participated in. A second data role was never filled and the complainant had never applied for other roles.
3.14 In closing submissions, the respondent outlined that Mulcahy v Minister for Justice, Equality and Law Reform  13 E.L.R. 12 was authority that mere coincidence was not sufficient to establish a prima facie case of discrimination. No evidence had been tendered to show a link between the non-renewal of the contract and the complainant’s pregnancy. It was submitted that there were three elements to the claim: discriminatory dismissal, access to employment and the allegation of discriminatory treatment as an employee. The complainant was not a permanent employee and held a fixed-term contract. She had been informed in May 2014 that the contract would not be renewed. She had applied for one role with the respondent. The interview notes show that the process was fair and transparent. The respondent had not been under any obligation to renew the fixed-term and a process ensues for every fixed-term role that comes up for renewal. The process was that the role would be examined. This was a changing industry and there had been significant investment in 4G. There was a deficiency in data products and the relevant KPI was tied to data services and innovation. It was further submitted that the generic SPM Mobile role was not going to continue beyond the expiry of the complainant’s fixed-term contract and had not continued since this time. The respondent was entitled to specialise roles and in this case, approval had only been granted for one role. It was a red herring to point to the two roles stated in the May 2014 presentation. The complainant had ranked third and while the first-placed candidate had declined, the role was offered to the second-placed candidate. There was no second role to offer and no such role had been filled since then. The complainant’s contract had not been renewed because of the change in the market, the fact there was a technical shortfall within the respondent and the decision that the complainant was not suitable for the new role.
3.15 In respect of the interview process, the complainant had been facilitated in lodging an application. It was submitted that it was not the role of this adjudication to step into the shoes of the two panel members. Referring to the authority of O’Halloran v Galway City Partnership EDA 77/2007, an employer was entitled to determine the criteria for a recruitment process and the questions that fell to be answered were whether a complainant was clearly better qualified and whether the criteria had been applied inconsistently. It was submitted that this had not been shown in this case. In respect of the non-renewal of the fixed-term contract, it was submitted that no appropriate comparator had been identified and the people referred to by the complainant were in different situations. They had not been doing a generic role where their fixed-term contract was coming to an end. Addressing the referral to the CMO, it was submitted that the referral was consistent with established practice and was not discriminatory. In respect of the handover, the evidence was that the complainant was back in work for three weeks, but could have to leave at any time. The respondent was unclear as to when the complainant’s maternity leave would commence. It was common for an employee’s role to wind down in advance of maternity leave and it was likely that this could occur at any time in the three-week period. It was submitted that because the complainant’s role was coming to an end at the expiry of the fixed-term, this was to be a permanent handover of roles. This differentiated this handover from the complainant’s first maternity leave. In relation to the Small & Medium Business role, the email from Director of Product & Services may have jumped the gun, but the offer was made to the successful candidate on the 10th June. In respect of job applications made by the complainant after the end of her employment, no evidence had been proffered by the complainant regarding any detriment caused by the respondent and this had been strongly denied in evidence. It was submitted that for a claim of discriminatory dismissal to be established, and relying on Melgar v Ayuntamiento de Los Barrios C-438/99, there had to be a succession of fixed-term contracts, as well as evidence of a motivation, for the dismissal to be discriminatory. Also relevant were the vacancies offered to the complainant to apply for and the consistent process in filling the new role.
4. Findings and reasoning:
4.1 This case was heard over two full days. The complainant as well as three respondent witnesses gave evidence. This was led in examination and subject to cross-examination. The parties submitted documentation relating to the complainant’s employment with the respondent as well as email correspondence exchanged by the parties. They also made detailed legal submissions. Before considering the legal framework for this claim and the relevant conflicts of fact to be resolved, it is worth enumerating the elements of the claim. Front and centre of the dispute is the expiry, and non-renewal, of the complainant’s fixed-term contract. This took place on the 20th November 2014, during her maternity leave. Prior to the end of the fixed-term, the complainant applied for another role on her team. She states that this role was, in reality, her existing role, while the respondent states that it was a substantially different role. At the outset, there were two new roles in the team and only one progressed to hire. The complainant also sought to apply for the Senior Product Manager – Small & Medium Business role and the respondent states that this was already on offer. The complainant asserts she was discriminated against in having her duties taken away from her after a period of annual leave, leaving her with little to do until the start of her maternity leave. She raises the issues of the referral to the Chief Medical Officer, the aborted 5th June meeting as well as the conference and a subsequent promotional video. The respondent strongly denies the complaints of discrimination.
4.2 Section 85A of the Employment Equality Acts sets out the burden of proof in relation to complaints of discrimination. It requires the complainant to prove the primary facts upon which she relies in seeking to raise an inference of discrimination. If the complainant can establish the necessary facts, and where they are of such significance to raise the presumption of discrimination, the burden of proof then falls to the respondent. At this juncture, the respondent must rebut the inference of discrimination, presuming, of course, that the complainant has been able to establish such a prima facie case. If the complainant does not discharge the initial probative burden then her case cannot succeed. In respect of pregnancy-related claims, the Equality Tribunal in O’Brien v Persian Properties (DEC-E2012-010) held “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.” Given that this is a claim of discrimination related to pregnancy, it should be considered with regard to the grounds of gender. This is particularly the case as so much pregnancy discrimination case law emanates from the Court of Justice of the European Union and was decided on grounds of gender. There is no stand-alone ‘family status’ ground in EU law and I have restricted my assessment of this case to the grounds of gender.
4.3 The Court of Justice of the European Union considered the position of pregnant workers who held fixed-term contracts in Melgar v Ayuntamiento de Los Barrios C-438/99 and in the Tele Danmark case C-109/00. In Melgar, the Court held, at paragraph 47, that
“The answer to be given to the third question must therefore be that, the prohibition of dismissal laid down in Article 10 of Directive 92/85 applies to both employment contracts for an indefinite duration and fixed-term contracts, non-renewal of such a contract, when it comes to an end as stipulated, cannot be regarded as a dismissal prohibited by that provision. However, where non-renewal of a fixed-term contract is motivated by the worker’s state of pregnancy, it constitutes direct discrimination on grounds of sex, contrary to Article 2(1) and 3(1) of Directive 76/207.”
For clarity, the question answered by the Court in Melgar was “What repercussions does Article 10 of the Directive have regarding non-renewal by an employer of a fixed-term contract of a woman who is pregnant under the same circumstances as prevailed in relation to earlier contracts? Does Article 10 affect the protection enjoyed by a pregnant woman in the context of temporary employment relationships, and if so, in what way according to what parameters and to what extent?” Again, for clarity, it is worth quoting Article 10 of Directive 92/85 (the ‘Pregnant Worker’s Directive’), which states:
“In order to guarantee workers, within the meaning of Article 2, the exercise of their health and safety protection rights as recognized 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.”
Lastly, the sections of Directive 76/207 referred to in Melgar provide as follows:
1. For the purposes of the following provisions, the principle of equal treatment shall mean that there shall be no discrimination whatsover on grounds of sex either directly or indirectly by reference in particular to marital or family status.
1. Application of the principle of equal treatment means that there shall be no discrimination whatsover on grounds of sex in the conditions, including selection criteria, for access to all jobs or posts, whatever the sector or branch of activity, and to all levels of the occupational hierarchy.”
The provisions of Directive 76/207 were recast with the provisions of other equal treatment Directives into Directive 2006/54/EC.
4.4 Applying Melgar, it follows that the issue to be determined in the instant case is whether the complainant was subject to discriminatory treatment by the respondent, including with regard to the non-renewal of her fixed-term contract. As concluded by the Court of Justice, such non-renewal cannot amount to a discriminatory dismissal. Submissions were made by the parties in respect of Mulcahy v Minister for Justice, Equality and Law Reform and the legal test to be met by a complainant (this is discussed below). What is striking about Mulcahy is that O’Sullivan J. applies section 23 of the Maternity Protection Act to hold that the employee in that case was dismissed, by operation of the law, on the expiry of her maternity leave and not on a purported, earlier date. In this case, the complainant was dismissed on the 20th November 2014. It transpired that the respondent paid the complainant in December 2014 as well as in January and February 2015. The complainant notified the respondent of these payments and the respondent sought recovery of two payments, the third being a redundancy payment of €4,200 made in February 2015. The complainant replied by indicating that she would repay the two amounts sought in June and July 2015. The complainant went on maternity leave on the 11th July 2014, meaning that her statutory maternity leave ended 26 weeks after that date, i.e. on the 9th January 2015. The respondent referred to the fact that it paid maternity pay as a contractual obligation. This is not a Maternity Protection claim, and nor one made pursuant to the Payment of Wages Act (relating to maternity pay), so I cannot decide whether any breach has taken place with regard to those Acts.
4.5 I do not agree with the respondent’s assertion that Melgar only applies to situations where there have been multiple fixed-term contracts. It is true that in the Melgar case, there had been multiple fixed-term contracts. I do not read the decision of the Court of Justice to restrict its application to situations where there have been multiple fixed-term contracts, as opposed to the instant case where the complainant sought a renewal following the end of her first fixed-term contract with the respondent. I also note the Court of Justice’s decision in Tele Danmark, handed down on the same day as Melgar, related to a single fixed-term contract and no issue is raised by the Court in this regard.
4.6 In assessing the case, I have taken account of the oral evidence of the witnesses, the documentation submitted by the parties and the submissions made on their behalf. I have attempted to lay out the legal framework applicable in this case. It is a case where the evidence of the witnesses was of particular importance in establishing whether the complainant can prove facts of such significance as to raise an inference of discrimination. In that regard, the complainant gave evidence over a full day and was subject to precise and thorough cross-examination by the respondent. In evidence, the HR advisor said that the complainant came across very well in the course of the interview of the 25th September 2014. Similar positive comments are made in the interview notes. I too was struck by the authoritative and persuasive demeanour of the complainant throughout the hearing.
4.7 Having considered all the evidence, I make the following findings in relation to the complaint. The starting point is the complainant’s return to work in late September 2013. It is not in dispute that she was welcomed back to her role, one that commenced in November 2011 and subject to a three-year fixed-term. There was reference at the hearing to an authorisation form labelling the complainant as “permanent”. I do not attach weight to this document in assessing whether a prima facie case has been met; I accept the respondent’s evidence that it differentiates her from being an independent contractor. The complainant notified the respondent that she was pregnant in March 2014 and says she submitted documentation regarding her pending maternity leave in May 2014. It is not disputed that she attended a meeting with the Line Manager and the Director of Product & Services, where she was told that her fixed-term contract was not being renewed and that she did not have the skillset for two new roles being created within the team. The respondent outlined that she could apply for the new roles. In the Line Manager’s email of the 23rd June, he states “We do not believe that based on our assessment of your current role that you have the required experience, skills and capabilities, however the interview assessment process will provide you with the opportunity to present any experience, skills and capabilities you have for these new complex mobile network based data product and services. We hope that you will avail of this opportunity.” On the 23rd May, the Director of Product & Services gave an “eBusiness Product Team Briefing” showing changes to the team and additional roles to be created. This includes the two SPM Mobile roles and refers to the vacant SPM Small & Medium Business role. On the 3rd June, the Director of Product & Services circulated an email to inform colleagues of new reports, including of the team leader/hiring manager and the Line Manager. The complainant asserts that she should have had the opportunity to apply for these roles. I do not agree that the reallocation of reports as outlined in the email is a fact of such significance that raises an inference of discrimination.
4.8 It is certainly unusual that an employee against whom no performance issues are raised is informed that she does not have the skillset for new roles to be created in her team as her fixed-term contract is to come to an end. I acknowledge that the respondent provided the caveat that the complainant could apply for the role and advance her credentials. It also referred to the complainant having a head start. I have regard to the three colleagues identified by the complainant whose contracts were renewed after the end of their fixed-terms. Furthermore, the complainant makes the submission that until December 2015, the complainant was the only person who lost their position following the May 2014 restructuring. She was also the only pregnant employee. I find that, taking these elements of the claim together, the complainant has established facts of such significance that raise a prima facie case of discrimination. At this time, the complainant made enquiries about the SPM Small & Medium Business role. I accept that she was already aware of this vacancy but only thought of applying for it when told that her contract was not to be renewed. She made enquiries about the role on the 4th June and was informed by the Director of Product & Services on the 6th June that it was at offer stage. In evidence, it was elucidated that the interview stage for the role took place on the 6th June, so it is hard to see how the Director of Product & Services could say at 14.52hrs that it was at offer stage. The Director of Product & Services did not give evidence to the hearing, but I find that the complainant being told that the SPM Small & Medium Business role was already on offer when it is likely that it was not constitutes a fact of such significance that establishes a prima facie case of discrimination.
4.9 It is obvious that there was tension between the parties following the complainant being told that her contract was not being renewed. In this regard, I find that the complaints regarding the conference invitation and footage, nor the referral to the Chief Medical Officer and nor the aborted 5th June meeting are facts of such significance to raise a prima facie case of discrimination. I reach a different conclusion with regard to the handover of the complainant’s duties in advance of her maternity leave. It was accepted by the respondent that the handover was done differently than the handover prior to the complainant’s first maternity leave. This, of itself, raises an inference of discrimination.
4.10 Two issues arise from the complainant’s interview for the SPM Mobile role on the 25th September 2014. The first is whether the interview process was tainted with discrimination and the second is whether, as of the 17th November, there were one or two roles to be filled. As submitted by the respondent, the Employment Equality Acts provide a very restricted scope to assess the conduct of an interview/recruitment process. An employer is entitled to select competition criteria and it falls to be determined whether an applicant is clearly better qualified or whether the criteria have been applied inconsistently. In this case, the complainant was ranked third. It is clear that the first-placed candidate performed very well and a prima facie case of discrimination could not succeed in respect of this applicant. He declined the offer of the role, so the issue to be considered is the comparative treatment of the complainant and the second-placed candidate. In this regard, I agree with the submissions of the complainant. The fact that the second-placed candidate is described in the interview notes as being “more of a support than a senior PM” and who “lacked drive” and “research not clear” scores higher than the complainant for a role that the respondent states is for a “visionary” candidate raises a prima facie case. While the complainant performed better on some questions than on others, it is clear that she excelled in a number of areas discussed at interview, scoring the highest marks. A further question to be considered is whether, as of the 17th November 2014, there remained a vacant SPM Mobile role to fill. This arises because by this date the complainant had been told that she had been unsuccessful at interview. On the 17th November, the HR advisor forwarded to the complainant an email with then current vacancies and this list includes one SPM Mobile position. The issue that arose on the second day of the hearing of this case was whether this role was the one filled by the second-placed candidate following after the September interviews, or was it a second role yet to be filled. The complainant asserts that this email shows that there was still an outstanding role to be filled and the complainant, as the next placed candidate, should have been appointed to this role. The respondent asserts that the number of new SPM Mobile roles had been reduced to one and the 17th November email refers to the filled role. I find that the complainant has not been able to establish as a fact that the 17th November email refers to a second SPM Mobile role. The HR advisor (no longer an employee of the respondent) only attended the first day of the hearing. It was not put to her that her email refers to a second, still-open SPM Mobile role and one that should have been offered to the complainant. On the evidence opened at the hearing, I have no basis for finding that there remained a SPM Mobile vacancy.
4.11 Having found that the complainant has established primary facts of such significance from which an inference of discrimination can be drawn, it falls to consider whether the respondent has rebutted the inference. I have identified six sets of primary facts from which an inference of discrimination can be drawn. The first issue to consider is the respondent informing the complainant that she had not demonstrated the experience, skills and capabilities for the new roles being created in the Mobile team. The respondent states that it did so because of differences in the job specifications, that the complainant could advance her credentials at interview and that this would have given the complainant a head start on other applicants. An employer can, of course, change and specialise roles to meet changing business needs. In this case, I am struck by the overlap between the existing and the new roles, and the fact that the new role required less experience than the complainant’s role had. Both parties referred to the fact that the mobile industry is one that is constantly evolving and had been subject to significant recent corporate change. The respondent did not point to any established practice of informing existing employees that they did not have the skillset to meet business needs following a restructuring, outside of situations where performance issues arose. This was a team with a growing head count and no performance issues were raised against the complainant. Given that the complainant not having the required skillset was presented to her as a negative, I do not accept that it could have given her a “head start” in relation to applying for the role. For these reasons, the respondent has not rebutted the inference of discrimination arising from the circumstances around which the complainant was told her contract was not being renewed and she did not have the skillset for the new roles.
4.12 The complainant gave evidence of three named colleagues who had had contracts renewed following the expiry of their fixed-terms. The respondent said that they were in different teams. It was beyond the scope of this investigation to determine whether the respondent has, as alleged, a practice of renewing fixed-terms where there is a business need and where no performance issues arise. The explanation provided by the respondent is not sufficient to rebut the inference of discrimination. In or around this time, three colleagues had their contracts renewed. It is not sufficient that they worked in different teams, in particular in circumstances where they were not pregnant employees. I also find that the respondent has failed to rebut the inference of discrimination arising from the fact that up until December 2015, the complainant was the only member of the Mobile team to have lost their role because of the restructuring announced in May 2014. It was stated at the hearing that the team leader/hiring manager had been made redundant in December 2015, some weeks before the first day of the hearing. It is not suggested that any other member of the team was pregnant in this period. This was a growing team, changing to meet the developing business needs of the respondent, in particular following high profile investment it made in infrastructure. I find that the respondent has not rebutted the inference of discrimination arising from the fact that the complainant was the only employee to lose their role at the time of the 2014 restructuring when she was the only pregnant employee. I find that were it not for her pregnancy in 2014, the complainant’s fixed-term contract would have been renewed on its expiry in November 2014.
4.13 In respect of the SPM Small & Business Mobile role, I find that the respondent has not rebutted the inference of discrimination arising in this regard. On the 22nd May 2014, the complainant was informed her contract was not being renewed. On the following day, a presentation was made, giving details of changes to the team as a whole. The complainant later sought to apply for other roles in the team, and made an enquiry about the vacant SPM Small & Business Mobile role. She was told at 14.52 hours on the 6th June that it was on offer to a candidate. The interview process for the role was conducted on that day. The complainant learnt that it was only offered out on the 10th June. The respondent referred to the offer having been made informally on the day of the interview, and it took some time for the formal offer to issue. The respondent did not provide direct evidence from the Director of Product & Services to show how he knew that an informal offer had been made when he wrote the email of 14.52hrs. This approach contrasts starkly with the offer process undertaken for the SPM Mobile role. The complainant’s interview took place on the 25th September 2014 and an offer made in or around the 7th November. There is a much longer time lag between interview and offer, and the results of the SPM Mobile interview panel were circulated to the HR department in advance of their announcement.
4.14 It was not disputed that the handover before the complainant’s first and second periods of maternity leave were handled differently by the respondent. The respondent explains that this arose because of the reference to “early delivery” in the complainant’s email of the 9th June 2014. This reference was included in the fifth bullet of detailed points raised by the complainant regarding her future with the respondent. She stated “If you are not renewing my contract, what are the objective grounds for this and when will these be issued to me in writing as is required for my review, particularly as I will be on a period of protected leave with effect from mid/end July, or possibly earlier as my doctor advised I could possibly have an early delivery.” The complainant returned from a period of annual leave (preceded by 2.5 days of sick leave) on the 20th June. She found that the respondent had completed the handover of her duties, assigning her work to others. She says that she went from receiving a hundred or so emails per day to receiving very few. The respondent states that it was concerned about the email’s reference to “early delivery” and therefore immediately reassigned her duties. In the context of a detailed email where the complainant raises her future in the company, and makes this passing reference to the end of her pregnancy, I cannot accept the explanation of the respondent. It was always clear to the respondent that the complainant would be returning from annual leave to resume her duties. Her maternity leave was due to commence on the 11th July, so it was inevitable that the period after the 20th June would have involved setting the handover in train. Even had the complainant gone on maternity leave prior to the 11th July, she should have had the opportunity to at least start the process. Reading the full email, and the detailed points and questions posed by the complainant, I find that the immediate reallocation of the complainant’s duties in these circumstances was a discriminatory act.
4.15 In respect of the prima facie case raised by the treatment at interview of the complainant and the second-placed candidate, I find that the respondent has not discharged the inference of discrimination. The complainant attended for interview on the 25th September 2014; the second-placed candidate did so on the 17th September 2014. The interview notes of both the HR advisor and the team leader/hiring manager are provided for the complainant’s interview. The notes of the HR advisor are provided in respect of the second-placed candidate’s interview. The candidates are given ten scores, being allocated marks between “1” and “4”, “4” being the highest. The complainant scored a total of 26, made up of two “4”, two “3” and six “2” grades. The second-placed candidate scored a total of 28 marks, made up of and two “4” grades, three “3” and five “2” grades. It was also open for the panel to award impact ratings in the areas of “experience”, “drive and determination” and “self awareness”. Marks of “+1”, “0” or “-1” could be awarded in these areas. The complainant did not score an impact rating and the second-placed candidate scored a “+1” impact rating for experience. Overall, the marks between the complainant and the second-placed candidate were close. This, of itself, cannot prove discrimination. I have referred to the juxtaposition of comments recorded at interview regarding the second-placed candidate being a support rather than a lead when the nature of the role was to be visionary. Having regard to the interview notes as a whole, in particular the two sets of notes made available for the complainant and the one set for the second-placed candidate, I find that the respondent has not rebutted the inference of discrimination. Amongst other findings I could draw, I contrast the full marks given to the second-placed candidate for his answer to the question “how do you propose eircom Business proceed? Should we follow or continue to ‘give data away’?” when no marks at all were awarded for the complainant’s answer. On the other hand, the complainant scored “2” for her answer to the final question of the interview “What, in your opinion, is the “next big step” for business mobile products?” No mark is recorded for the answer given by the second-placed candidate, except for the comment that this candidate “mentioned voice over IP”. This discrepancy alone accounts for the two-point gap between these two candidates. I also agree with the complainant’s submissions regarding the impact rating given to the second-placed candidate; the mark of +1 is not borne out by the interview notes, in particular where a score of 0 was given to the complainant. Taking these findings together, I reach the conclusion that the respondent has not rebutted the inference of discrimination and that the interview process was tainted with discrimination.
4.16 The complainant gave evidence of her efforts to find employment after the end of her contract with the respondent. She said that it was her belief that these efforts had been hindered by the respondent; the respondent strongly denied this in evidence. It was clarified that there was no complaint of victimisation. In the absence of such a complaint, and where the complainant was no longer an employee at the time she sought alternative employment, I make no findings in regard of this element of the complaint.
4.17 In respect of redress and applying the von Colson principles (Von Colson and Kamann v Land Nordfhein –Westfalen  ECR 1891) and the need provided in Article 25 of the Recast Directive (Directive 2006/54/EC) for penalties to be “effective, proportionate, and dissuasive”,I have regard to the following factors. I have found that the non-renewal of the complainant’s fixed-term contract of employment was a discriminatory act. Moreover, I have found that were not for the announcement of her pregnancy in March 2014, her fixed-term contract would have been renewed. The complainant was also subject to discriminatory treatment when she sought to secure other roles in the respondent, including the SPM Small & Medium Business role and the new SPM Mobile role. Discriminatory treatment on grounds of the complainant’s gender also occurred when she was told that she did not have the skillset for the new role and when she was excluded from the handover of her duties prior to the maternity leave. I take account of the range and seriousness of the discriminatory acts. I take account of the complainant’s seniority and her proactive and articulate response to each discriminatory act. Every time a door was shut by a discriminatory act, the complainant endeavoured to fashion an alternative to allow her remain in employment with the respondent. Taking the factors outlined above, I award redress of €120,000.
5.1 I have concluded my investigation of this complaint. Based on all of the foregoing, I find, pursuant to Section 79 of the Act, that the complainant was the subject of discriminatory treatment on grounds of gender.
5.2 In accordance with Section 82 of the Act, I order the respondent to
pay to the complainant €120,000 in compensation for breaches of the Employment Equality Acts. The award is redress for the infringement of the complainant’s statutory rights and, therefore, not subject to income tax as per Section 192A of the Taxes Consolidation Act (as amended).
Adjudication Officer / Equality Officer
22 December 2016