ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00011958
A School employee
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994
Date of Adjudication Hearing: 17/08/2018
Workplace Relations Commission Adjudication Officer: Pat Brady
In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 79 of the Employment Equality Acts, 1998 - 2015, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
The complainant worked part-time for the school between May 2010 and July 2017 when her employment terminated. Her working week was twenty-nine hours and she was paid €23 per hour.
She was facilitated with home working during the summer.
Summary of Complainant’s Case:
By way of background to the current complaint the complainant had been approached in 2015 prior to her return to work from a previous period of maternity leave and requested to increase her hours to full time and also to attend for work during the summer holidays in the future.
However, following discussions this did not go ahead and it was agreed that she would continue on the same basis as before.
In May 2016 the complainant went on maternity leave again and in her absence some of her tasks were undertaken by the Vice Principal.
She returned to work on April 24th, 2017 and shortly after that the subject of her hours came up again. She was not in a position to agree to any increase for family reasons.
Nonetheless, the respondent persisted and a meeting took place with the Principal and Chair of the Board of Management on May 29th. The complainant’s position remained the same and she sought a formal statement of the Board’s position in writing.
This was received on May 31st and the complainant replied on June 5th rejecting the proposed change and suggesting a reduction in her hours if that would facilitate a second person being employed on a job-sharing basis.
At a meeting on June 12th she also drew attention to changes which had been implemented during her absence on maternity leave which she felt had diminished her role.
The possibility of a voluntary redundancy was broached. The complainant put this in writing to the respondent. The Principal undertook to consider it.
At a Board meeting on June 15th a decision was taken to terminate the complainant’s employment on the basis of redundancy and this was confirmed at a second meeting on June 21st and she was offered statutory redundancy the following day and put on notice of the termination of her employment.
She rejected the offer and also a proposal from the respondent on June 23rd for a meeting.
The termination of employment was confirmed on June 28th and notice expired on July 22nd.
The respondent then changed its mind and withdrew the notice on July 24th, telling the complainant that her employment position was unchanged and that she remained in employment. This was confirmed to her at a Board meeting she attended on August 1st. The complainant suggested that the matter could be resolved on the basis of an enhanced redundancy package but this was rejected by the respondent.
The respondent sent her wages to her for this period but the complainant returned them.
The complainant confirmed on August 15th that she considered the employment relationship to be over and this was accepted on September 25th.
The complainant says that these facts represent a discriminatory termination of her employment on the grounds of family status and gender. She also complains that she was victimised for raising complaints about how she was treated when she returned in April 2017.
She also complains that she was not provided with a statutory statement under the Terms of Employment (Information) Act, 1994.
Summary of Respondent’s Case:
The respondent notes that the complaint was submitted on November 16th 2017 and this restricts the jurisdiction of the Adjudicator to alleged breaches falling in the period commencing May 17th 2017. No case has been advanced for an extension of this timeframe.
The respondent rejects that there has been a discriminatory dismissal, or that the redundancy was discriminatory.
Changes that were made in the respondent’s financial procedures cannot be connected to the redundancy to form the continuum necessary to bring it within jurisdictional time limits.
The background to the issue can be traced initially to 2014 when implementation of recommendations in a report by the Department of Education and Skills required an enhanced administrative function, and this included a full-time secretary; the complainant was working only twenty nine hours.
The complainant went on maternity leave and so the proposed change could not be discussed with her until her return. During her absence on leave, her temporary replacement was regularly required to work longer hours than the complainant. This reinforced the need to have the complainant work on a full-time basis.
On her return from maternity leave in June 2015 the respondent raised the matter again but again no progress was made and it was agreed that the complainant’s existing arrangement would continue.
The respondent came under further pressure to make changes on foot of an external audit of the school’s financial governance which concluded that its finances were ‘in a serious state’ and very detailed recommendations for change followed this which impacted on the complainant.
She went on maternity leave again in May 2016 resulting in discussions on change being put on hold. In the meantime, the recommendations for change in the respondent‘s governance were being implemented.
Putting the various recommendations in place further emphasised the need for a full-time secretary because the part time nature of the complainant’s position meant that the school office was unattended for periods and at such times there was no-one to monitor students signing in/out of school or deal with queries from parents.
During the summer when the complainant worked from home there was no-one to answer the telephone.
Overall the workload increased because the school population had increased from 88 to 130 pupils.
Its oversight Management Body, the JMB stated that a full-time secretary was needed
The respondent reviewed this at Board meetings in March and May and mandated the Chairperson and the Principal to take the necessary steps to put an effective, wholetime secretarial service in place.
A meeting was arranged with the complainant on May 26th 2017 to discuss this. It had emerged that the respondent had not given the complainant the statutory statement of her Terms and Conditions of employment and it was explained at this meeting that it would be doing so.
In respect of any increase in her hours the complainant said she was not in a position to change.
A further meeting was arranged for May 29th 2017 but no further progress was made on the hours. The respondent gave the complainant a letter on May 31st proposing a change to thirty-nine hours per week, and that she would be required to attend at the school premises for most of the summer period.
The complainant replied on June 5th rejecting the proposal and offering to either continue with the status quo or reduce her hours to facilitate employment of another person on a job-sharing basis.
The respondent could not agree to this partly as the complainant was paid €23.00 per hour (well in excess of the normal €11.50 per hour) and an offer of statutory redundancy was made. This was on the basis that the part-time role was being made redundant in favour of a full-time role. As the complainant did not wish to take up the alternative full-time employment she was being made redundant.
These options were discussed at a meeting on June 22nd, including the job-sharing option and the reasons it could not be accepted (the cost) and the complainant was given the letter of redundancy with four weeks’ notice.
The complainant rejected the proposed redundancy the same day and indicated that she would be in touch after she had taken advice but she did not do so. The Principal telephoned her on July 18th to discuss the situation but the complainant did not wish to.
Because the respondent wished to resolve the matter amicably it decided to withdraw the notice of redundancy and did so on July 24th and invited the complainant to further discussions on August 1st. The complainant continued to be paid.
However, the respondent re-stated its position and no progress was made. The complainant stated that the working relationship had been damaged. She sought an enhanced redundancy package at statutory rates plus eight weeks per year of service.
This claim was formally rejected on August 4th 2017 and following a request from the complainant a meeting took place with the Principal at which she said she would not be returning to work and that she would return the cheques paid to her since June 21st.
The complainant wrote on August 15th requesting her P45, a reference and her statutory redundancy payment. The respondent replied on September 25th enclosing her P45 and a cheque for €9264 in respect of her redundancy.
The complainant made a number of complaints about changes to her terms and conditions made in her absence on, and following her return from maternity leave. These are variously either denied or for example in the case of cheque payments attributed to a requirement of the DES or other governance requirements.
In its legal submissions the respondent states that the burden of proof falls on the complainant (Southern Health Board v Mitchell  ELR 201, and that simple reliance on the protected ground will not suffice. Other case law is reviewed in my Conclusions below.
The respondent accepts that the complainant had not been given a statutory statement although it was attempting to comply in the course of the discussions about revising her hours.
Findings and Conclusions:
At the outset, it is important to recognise the difficulties which faced both parties in the case.
On the one hand, the respondent argues that it had to make changes to meet the requirements of an expanding student population and to urgently conform with governance requirements being imposed from external oversight bodies and its auditors.
On the other hand, the complainant fully acknowledges and understands these pressures but says she was not in a position to undertake a full-time position because of her family responsibilities; it will be recalled she had two children in the course of the narrative of the recent background to the case.
The situation was further complicated by the complainant’s relatively generous employment package, which of course had been fully agreed by her employer and restated as recently as 2015 on her return from a period of maternity leave.
If the respondent subsequently found itself in a difficulty as a result of the complainant’s level of pay it was a difficulty of its own making. Its argument that to have embraced the job-sharing option that came up towards the end of the discussions between the parties would have resulted in approximately double the secretarial costs it might normally have expected to pay is one that is reviewed below.
The complainant did not seem hostile to the principle of redundancy and a greater effort on the part of the respondent to mediate a settlement might have bridged the gap between the admittedly ambitious (but presumably opening) demand for ten weeks for each year of service, including the statutory rates. Both parties would have been spared a great deal of cost and inconvenience if they had done so and managed to settle somewhere between the two positions.
Likewise, the reconsideration of the issuing of notice and the attempts to withdraw it were clumsy and may reflect the difficulties often seen when negotiations are being conducted by a committee.
All of that said the net question is whether the termination was discriminatory on the gender and family status ground or whether the case made by the respondent provides objective justification for it.
A situation in which a position is being made redundant to make way for additional work is the opposite of the normal rationale for redundancy and is somewhat counter-intuitive.
The Redundancy Payments Act 1967 provides for redundancy in respect of five situations which might arise; three relate to a reduction or diminution in the need for the work the employee is undertaking and this is the most common understanding of its purpose. (See section 7 (2) generally).
Two are positive, in that they relate to an expansion of work and concern, for example changes in work methods (section 7(2)(d)) and change in work (section 7(2)(e)).
The first of these is further defined as (underlining added in both cases);
[t]he fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done in a different manner for which the employee is not sufficiently qualified or trained’
[t]he fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained. (section 7(2)(e))
The former has been described as requiring ‘some qualitative change in the nature of the job and where the employee is not sufficiently qualified or trained to do the job in the new manner’.
Likewise, in respect of the latter the provision in section 7(2)(e) has also been described as requiring ‘a change in the nature of the job’. (In ‘Employment Law’, 2nd Edition, editors Murphy and Regan pp 784/785.)
The author there cites the decision in St Ledger v Frontline Distribution Ltd  ELR 160 where the EAT stated;
‘Definition (e) must involve, partly at least work of a different nature, and that is the only meaning we can put on ‘other work’. More work or less work of the same kind does not mean ‘other work’ and is only a quantitative change’
In this case there was no question raised as to the complainant’s competence or skills. Likewise, while the proposed change required some reorganisation or reallocation of tasks it was not qualitative in nature to judge from the extensive submissions on this point by the respondent.
Of the five points made to support its case for objective justification all are quantitative; the increase in the size of the school, the need for extended cover in the office, for better parent contact and student monitoring during her absence and during the summer, etc.
But the question raised by the complainant is whether the termination was an act of direct discrimination based on the gender and family status grounds which was defined as arising when the less favourable treatment is based on a criterion which is necessarily linked to a characteristic indissociable from the discriminatory ground (Case C-79/99 Schorbus).
The complainant submitted that;
‘in order to establish direct discrimination, it is necessary to prove that, but for the fact that the complainant falls within one of the discriminatory grounds, she would not have been treated differently. (Submission para 57).
The respondent has strongly argued that the considerations which impelled its desire for change were those which have been referred to and which arose from the need to enhance its governance and administration.
In NBK Designs v Inoue EED0212 (a case on which both parties made submissions) which related to a case of indirect discrimination arising from a proposal to amalgamate two job sharing posts into a single post, the Labour Court, having found a prima facie case of indirect discrimination went on to say;
However, a finding of discrimination only arises if the provision cannot be objectively justified in terms of paragraph (c) of subsection (1) as amended. The onus of establishing objective justification rests on the respondent.
The wording of section 22(1)(c) must be interpreted as contemplating the three-tiered test for justification set out by the ECJ in Bilka-Kaufhaus. This test requires that the court be satisfied that the impugned measures-
(a) Correspond to real need on the part of the undertaking,
(b) Are appropriate with a view to achieving the objective pursued, and
(c) Are necessary to that end.
In that case, the court proceeded to analyse the facts of the case against those criteria and concluded that;
‘the respondents gave no consideration to any other option by which their dissatisfaction with the job-sharing arrangement could have been addressed. It cannot therefore be said that there were no alternative, less discriminatory means by which the respondent‘s objective of improving efficiency could have been achieved’
These, three tiered Bilka-Kaufhaus tests are the tests an Adjudicator must apply.
In addition, reference is made in Inoue to a number of decisions where the test is that the proposed change be essential, and that it is insufficient that it merely be a ‘reasonable’ one. (Nathan v Bailey Gibson Supreme Court 29 February 1996, Unreported and Conlan v University of Limerick and the Minister for Enterprise and Employment  ELR 155.
On the basis of my assessment of the facts in this case I accept the respondent’s submission that its motive in seeking the change to a full-time position was objectively based on operational needs and that it was essential that it do so and therefore it meets the requirements of the first test; that for ‘a real need’.
In considering the second test; the appropriateness of ‘the means’, one possible alternative would have been to fill the additional hours by means of job sharing.
In Inoue the court applied a ‘proportionality’ test. It considered ‘that the benefit which accrued to the employer, when balanced against the discriminatory effect of the method by which it was achieved, could not satisfy the requirement of proportionality’.
Applying this proportionate/appropriate test to the facts in this case is not a simple matter.
In Inoue the Court referred to the benefit accruing to the respondent as ‘some improvement in efficiency’, and then concluded that there was a lack of proportionality as between the benefit to the employer and the impact on the worker.
One could not describe the benefit to the respondent in this case in such limited terms, but that still may not be sufficient to discharge the proportionality test.
I take into account the external pressures on the respondent to upgrade its administrative capacity and the reasons for doing so and that the additional capacity represented by an extra ten hours per term week and the summer period is a substantial change. As noted above it meets the criterion of being ‘essential’ on these facts.
Whether this demand might have been met by means of job sharing is another matter and brings the third of the Bilka-Kaufhaus tests into play. In respect of this test the Labour Court ruled against the employer on the basis that it had given no consideration to the possibility of alternatives.
In this case job sharing was considered but ruled out partly on the grounds of cost but also that it would not give the required continuity. One job sharer would be in the office for the morning period and another for the afternoon, for example.
Job sharing undoubtedly gives rise to some such difficulties of management and continuity but many enterprises manage their way through them, even if the outcome is somewhat less satisfactory than that which follows from having a single employee for the full working week.
But bear in mind that the third of the Bilka-Kaufhaus tests is that it be ‘necessary’; not preferable or more convenient, or cheaper to do it in the way proposed, but necessary, and in this context of the ‘proportionality test, necessary also to avoid an act of possible discrimination.
On this latter point, while as noted above the complainant’s rate of pay was high this was something agreed between the parties.
For that reason, it is not something which can be held against the complainant in any assessment of the options. That is to say the respondent cannot use as a basis for not taking a particular course of action something in which it has fully acquiesced.
It will also be recalled that the complainant offered in correspondence on May 31st to reduce her hours, thereby reducing the impact of the job sharing costs.
And in fact, the evidence submitted by the respondent for its having considered ‘all options’ (Appendix 14 of its submission) is not very convincing in that regard. There is no evidence (there or elsewhere) that it actually considered the practical mechanics of how the job-sharing arrangement would work. The note of the meeting at Appendix 14 is quite cursory in its consideration of the option of job sharing.
In Inoue the Labour Court stated that;
‘The requirement here is for the employer to demonstrate that there were no alternative means, having a less discriminatory effect, by which the objective could have been achieved’.
On any reading of this it is crystal clear what is required.
There was clearly an alternative which would have enabled the complainant to continue in employment. The arguments of the respondent that ’there would be no continuity in work’ is not credible, although the primary issue here is the inadequacy of the respondent’s consideration of it. Installing systems to overcome any problems of continuity does not seem especially formidable or require any great innovation.
Therefore, while the respondent might survive the first of the Bilka-Kaufhaus tests, and while offering something of a better defence than the respondent in Inoue for the second test (but yet an insufficient one) it demonstrably fails to pass the third one.
Accordingly, its defence of objective justification based on the Bilka-Kaufhaus tests and the decision of the Labour Court in Inoue and the other authorities referred to fails.
There is also a complaint of victimisation.
A good deal of evidence was heard at the hearing about various changes to the complainant’s role.
It was, in general, unconvincing. The respondent was required to reorganise some functions in the complainant’s absence on maternity leave; partly due to her absence and partly to implement the revised governance requirements in relation to payment by cheque, for example.
She complained about being excluded from a course for which she was not an eligible participant.
These did not constitute any failure to allow the complainant to return to the same position she left.
The complainant saw the move to pay her by cheque as an attempt to push her out, which was not supported by any evidence.
Undoubtedly, these changes might have been explained to the complainant better, and while she said she was very happy to return to work she found the changes stressful.
There were complaints about terms which were used in conversation which were denied and could not be corroborated.
It is clear, that whatever else may be wrong with it, the discriminatory dismissal and the related events complained of could not be traced to the fact that the complainant had objected to the changes identified on her return to work.
For that reason, I do not uphold the victimisation complaint.
In conclusion, I have very serious doubts about whether a termination on the grounds of redundancy can be made out on the facts in this case.
In any event, in relation to the complaint under the Employment Equality Act I find on the basis of the legal tests reviewed above that the complainant’s employment was terminated in circumstances that represent a discriminatory dismissal on the grounds of family status and gender.
In making my award below I take account of the fact that the complainant has received a redundancy payment of €9,264.00.
Finally, there is an obligation on an employer to furnish an employee a statutory statement of their terms of employment within two months of commencing employment. The respondent accepted that it had not done so.
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
For the reasons set out above I uphold complaint CA-00015840-001 and award the complainant €25,000.00.
I uphold complaint CA-00015840-002 and award the complainant €1,500.00.
Workplace Relations Commission Adjudication Officer: Pat Brady