EMPLOYMENT EQUALITY ACTS – 1998 - 2011
Decision No : DEC-E2018-018
A National School Teacher
The Department of Education and Skills
A National School Board of Management
File No : EE/2013/418 & EE/2013/419
Date of Issue : September 2018
Representing the Complainant:
Claire Bruton BL
Rachel Kelly of Hayes Solicitors
Representing the Respondent:
Gerard Durcan SC
Tony Kerr SC
Lorraine Williams Solr. from the Chief State Solicitors office
The Claimant herein is one of 14 named individuals, each bringing a similar type case. The Claimant along with one other of her Co-Claimants attended and gave evidence on their own behalf. It has been agreed between the parties that I will make a decision in respect of the two cases presented to me and that the balance of the cases will await a decision before proceeding. It is noted that the Respondent does not consider itself bound by the findings made by either of the two decisions to be issued under this process and it reserves the right to test the evidence of each separate Claimant in due course.
Further, it has been agreed between the parties that, for the purposes of the within proceedings, the Department must be considered the Employer. The Board of Management of the National School wherein the Complainant works is a Notice Party to the proceedings.
The Claimant is a primary school teacher who together with 13 other primary school teachers has issued a complaint to the Director of the Equality Tribunal by way of Workplace Relations Complaint Form received the 16th of August 2013. The Claimant along with her 13 Co-Claimants have all raised the same issue though their individual facts and circumstances might differ.
The Claimant alleges that a Department of Education and Skills Circular (9/2013) which came into effect on the 1st of May 2013 operates to discriminate against them on the ground of their gender and in particular they claim that they are now being treated less favourably than their non-pregnant colleagues as they are not being afforded the same entitlement to annual leave and public holidays.
The Claimant asserts that the claimants have been discriminated against, contrary to Sections 6(2A) and 8(6) of the Employment Equality Acts 1998-2011 as well as the Recast Equality Directive (2006/54/EC).
The Department of Education and Skills Circular (9/2013) has (it is alleged) brought about changes to heretofore recognised leave in lieu arrangements following maternity leave. The introduction of these changes has been seen as discriminatory by the Claimants who seek appropriate redress for the breach, and who seek an order for equal treatment, and an order that the DES reinstate leave in lieu for holidays which fall within maternity leave.
In 1989, the INTO supported a case taken on behalf of its member, Ms. Siobhan Mc Kiernan under the Maternity Protection of Employees Act 1981. As reported in the INTO CEC Report 1989/1990, the INTO (on behalf of Ms. Mc Kiernan) argued that the Maternity Circulars in force at the time were in breach of Section 15 (4) of the Maternity Protection of Employees Act 1981, which states: -
“(4) A period of absence from her work while on maternity leave or additional maternity leave shall not be treated as part of any other leave (including sick leave or annual leave) to which an employee concerned is entitled.”
Ms. Mc Kiernan’s claim was upheld, and she was granted leave in lieu of those holidays which fell during her maternity leave. In his recommendation, the Rights Commissioner stated that:
“The provision of the Maternity Protection of Employees Act must take precedence over any domestic or Departmental regulations… where such regulations would propose to limit the application of the terms of the Act to any employee covered by the Act”.
It is noted that at this Rights Commissioner hearing no representation was made by or on behalf of the Employer National School and, more importantly, the Department of Education was not on Notice of these proceedings although it was on the Department of Education’s specific advices that the school had acted. The Department having indicated that there was no precedent to allow annual leave to be taken in term time.
On foot of this case, the DES issued Circular 19/90 “Revision of Rule 119 Maternity Leave for Teachers” which stated inter alia
“Where maternity leave overlaps school vacation a teacher will be entitled to leave in lieu with pay for the vacation days overlapped, subject to a maximum of 27 days in any calendar year”.
In practise, this has meant that when a teacher is out of the workplace on her Maternity Leave, the days that the primary school (wherein she works) closed for well-recognised scheduled breaks such as Easter, Christmas and Mid-Term etc these were formally acknowledged as having been somehow “lost”. The teacher was allowed (at the end of her Maternity leave) a further period of up to 30 days of fully paid leave in lieu of these periods of school closure. It is noted that the increase to 30 days occurred when the period of paid maternity leave increased.
It is acknowledged that the implementation of this Circular over the next 22 years became an imbedded part of the primary school teacher’s expectation when taking Maternity Leave.
On 5th December 2012, as part of the provisions for education in Government Budget for the year 2013, the Minister for Education and Skills Ruairí Quinn made the following announcement as part of his briefing: -
“Currently teachers and SNAs on maternity leave are entitled to an additional maximum of 30 paid absence days, in lieu of days during their period of maternity leave when the schools were closed. This benefit was introduced at a time when paid maternity leave stood at 14 weeks, rather than the 26 weeks that currently operates and was to compensate for school closures which occurred during the maternity leave period. The cost of covering the substitution for these absences in 2011/12 was approximately €20 million. This arrangement, which is not available to other public servants or private sector workers, is to be ended. This will not affect a teacher’s or SNA's entitlements to 26 weeks’ paid leave and an optional 16 weeks’ unpaid maternity leave. A similar change will be made in respect of adoptive leave in lieu. The new measure will be introduced on May 1st, 2013 to give some notice. It will result in savings of €11 million in 2013 and €20 million in a full year”.
The INTO immediately raised concerns with the DES about the proposed changes, which were contained in a draft Circular sent on 19th December 2012. In an email from Mr. Billy Sheehan (INTO) to Mr. Dalton Tattan (DES) dated 20th December 2012 the INTO specifically objected to the proposed changes, on the grounds that they were, inter alia, a breach of the Employment Equality Acts.
In any event matters progressed and to deliver on the Minister’s intended objective, the DES issued the Circular 09/2013 which states at section 8: -
“8. Statutory Annual Leave/Public Holiday Entitlement
8.1 In general full-time employees are entitled to 20 days annual leave. Employees who work less than full hours are entitled to annual leave on a pro rata basis.
8.2 Any entitlements in respect of public holidays occurring while on maternity leave will be addressed by additional annual leave.
8.3 These annual leave entitlements are to be taken on existing school closure days that occur in the leave year in question i.e. both before and after the maternity leave period. Annual leave entitlements are to be taken at a time outside of the period of maternity leave.
8.4 When availing of statutory maternity leave and there are not enough school closure days in the leave year to absorb all annual leave entitlements, it is permitted to take the necessary days immediately before the maternity leave in the same leave year. Alternatively, teachers will be permitted to carry the balance forward to the following leave year but must then take these days during school closures.
8.5 Teachers who resign/retire or their employment ceases may be entitled to additional payment in lieu of their accrued leave.”
The implementation date for the changes was 1st May 2013.
These Circular purports to articulate a difference between school closure dates and Annual leave/Public Holiday dates. The Circular 09/2013 is the first time that the Department attempted to lock down the notion of Annual leave in terms of a maximum entitlement i.e. 20 days and when same could be availed of. Annual Leave henceforth was to be taken on existing school closure days. It is noted that this had, in fact, always been the practise and taking holidays/annual leave during term time was not the norm. This Circular had the effect of trying to distinguish between the Statutory entitlement to 20 days Annual Leave (together with Public Holidays) and those other days of Leave which simply existed because of the way the School year worked i.e. Term times and School closure times- Christmas, Summer, Easter etc.
The Claimants in these proceedings contacted the INTO when they became aware of the impact of the changes. These 14 cases were thereafter lodged on their behalf. In each case, the teacher was not afforded leave in lieu for holidays (or school closure days) which occurred during her maternity leave, and she was expected now to return to work immediately following her paid or unpaid maternity leave. Any Annual leave could only now be taken in school holidays. The numbers of days leave in lieu lost to each of the Claimant’s herein as a result of the changes ranges from 20 to 30 days.
In the case of Ciara Fitzgerald - she went out on Maternity Leave on the 27th of May 2013 just after the implementation date. The Maternity Leave lasted 26 weeks with a further period availed of through the unpaid Maternity Leave and Paternity Leave options open to her. The Maternity Leave spanned two leave years 2012/2013 and 2013/2014. Under the old regime Ms. Fitzgerald would have been entitled to a further period of up to 30 days paid leave in lieu of those days that the school was scheduled to be closed (arising at Christmas, Easter Mid-term and July etc.) and that she missed out on because she was on Maternity Leave. Under the new regime, the Claimant was not allowed those extra 30 days paid leave in lieu and was additionally not allowed to roll any Annual Leave (20 days) and Public Holiday entitlements (9 days) onto the end of her Maternity Leave if the school wherein she worked was open for business. Annual Leave and Public Holiday Leave have now to be taken during periods of school closure – of which there are about 14 weeks (70 days) in the year.
Both parties accept that a Primary School Teacher who is engaged by a National School will enter into an Agreement with the Board of Management which recognises that the teacher’s duties, salary and emoluments are governed by the Rules for National Schools which are set out in Circular format created and published from time to time by the Department of Education. For example, Circular 0034/2011 provides for the standardisation of the School year across all schools and specifically provides that a Primary School should be open for 183 days (circa 38 weeks) in the school year and which further designates dates and periods for closure (e.g. Christmas, Easter etc).
The Complainants herein each submit that they have been less favourably treated on the grounds of their gender status than their comparator, a teacher who was not pregnant and/or had not taken maternity leave, and who was therefore in a position to avail of holidays (as the Claimant’s perceived them to be) in the specified periods set out in the Circular 0034/2011- Christmas, Easter etc. The claimants were on maternity leave during these periods, and could not avail of any leave in lieu of those holidays on their return to work and have therefore they say been less favourably treated than their colleagues. This is the dispute that has arisen between the Parties.
The claimant referred a complaint under the Acts to the Director of the Equality Tribunal on the 14th of August 2013. On the 9th and 10th of October 2017, in accordance with her powers under section 75 of the Employment Equality Acts, the Director General of the Workplace Relations Commission referred the case to me, Penelope McGrath BL, an Adjudication Officer/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 this date, my investigation commenced. Submissions were received from both parties and as required by Section 79(1) of the Act a hearing commenced on 9th of October 2017.
This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was also an Equality Officer prior to 1 October 2015, in accordance with section 83.3 of the Workplace Relations Act 2015.
Both sides made comprehensive oral submission in the course of the hearing. I also heard the evidence of a number of witnesses which was tested by way of cross-examination. I have additionally reviewed the comprehensive written submissions prepared by both sides. Where necessary I have read through the Authorities and I have also considered some documentation provided by the Respondent on the 26th of October 2017 and which I note was CC’d to the Complainant Solicitor.
Summary of the Claimants’ position
Ms. Bruton set out the INTO’s case in respect of their named members.
By way of opening remarks Ms Bruton used one of the Claimants as an example and to illustrate for me the nature of the Complaint. She used Ciara Fitzgerald as an example. Ms Fitzgerald is a qualified Primary School teacher working in Galway. In February of 2013 she told her Employer she was pregnant. She was entitled to paid maternity leave commencing in her case on the 27th of May 2013 for 26 weeks up to the 25th of November 2013. It was the practise in previous years that when scheduled maternity leave happened to overlap with school closure dates then the days of closure could accrue up to a limit of 30 days which could then be added to the end of the Maternity leave as fully paid leave thereby creating a further 6 weeks of absence from the workplace. In addition to this the applicant is also entitled to a further 16 weeks unpaid leave as per the Maternity Protection Acts 1994 – 2004.
The Claimant herself had had the full benefit of this old system in 2009 when she had her 26 Maternity leave weeks as well as a further six weeks paid leave. At that time Ms. Fitzgerald also then took her unpaid leave entitlement.
The practise of allowing the days when the school is closed to accrue to the individual and to be given in lieu directly after the Maternity Leave entitlements has now been stopped as a result of the implementation of Circular 09/2013. The Respondent says that the accrued 30 days can now be taken as part of the scheduled recognised and pre-ordained school closure dates along with the Annual leave and Public Holiday entitlements which are also a Statutory entitlement.
But the Claimant’s Counsel says that this is a fundamental breach of the Equality legislation as the pregnant woman on maternity leave is being treated less favourably than her comparators in that she will entirely lose these days of school closure because of being out on Maternity leave. After all, she says, the male counterparts are entitled to and get these periods of school closure.
The Claimant Counsel says that a teacher returning to the school after maternity leave is entitled to be in the exact same position as her male counterparts and should be able to avail of the exact same number of days of school closure as her male counterpart’s avail of.
The National School academic calendar is divided into teaching days and free days. Teaching days are known to be in term time and free days are in non-term-time periods. These non-term periods are widely known and Christmas and Easter and Summer etc
Counsel posed the Question - What is the status of these free days?
These are the periods familiar to all of us. Taken at Christmas and Easter and over two or three midterms as well as the months of July and August. The Respondent says that all these days cannot be considered days of Annual Leave. The Claimant proposes that in circumstances where they are not required to work these days, nor do they in fact work these days, these days should be absolutely considered Annual Leave.
Counsel says that the Claimants are adamant that there is no obligation on them to prepare work or do work or research work on these days. It is for this reason that school closure days must be considered Annual Leave or Holidays. There has been in more recent years however, Ms. Bruton concedes, an obligation on the Teacher returning from a period of just such leave – Easter, summer vacation etc. to attend the workplace just prior to their scheduled return to the workplace (and during a period of closure) and this obligation was imposed by Croke Park arrangements. There is also scope under the Croke Park arrangements that the teachers in a School might be prevailed upon to come into the workplace for a day of preparation for an upcoming term for example at the end of August – and again the Croke Park agreement secured this concession. This was the first-time inroads were made into the days of closure which teachers had heretofore enjoyed.
The Respondent has made the case that National School Teachers are entitled to 20 days of Annual Leave together with the Statutorily recognised 9 days of Public Holiday. But traditionally Annual Leave had not been fully articulated so teachers believed they were entitled to 40 days in the summer as well as 5 to 6 days at Halloween, 10 days at Christmas, 2 days in February and 10 days at Easter. Teachers therefore traditionally believed that the Employer recognised up to 70 days of leave in the year. Teachers now want this process to formally recognise these days as Contractually agreed to Annual leave.
The Circular presented in 2013 per the Complainant has effectively extinguished the pre-existing status quo and imposed a limited policy of Annual Leave for teachers and Ms. Bruton rejects the Respondent’s position wherein the Respondent says it has simply clarified the policy.
Under the previous practise there appears on the face of it to be an Annual Leave entitlement of three to four months. The Complainant says that the Circular gives rise to the extinguishment of these long recognised Annual Leave entitlements which has the knock-on effect of reducing the entitlements of a woman who has had to avail of her Maternity Leave Entitlements Such a woman ends up being less favourably treated than her male counterpart who has continued as a matter of fact to be allowed to avail of these leave days as if they were Annual Leave.
Ultimately, Ms. Bruton suggested that if I find that Annual Leave has been extinguished then I am faced with finding that Maternity Leave and Annual Leave are running for the individual at the same time which is something the legislation has always sought to eliminate. These she says are two separate and distinct rights and entitlements. They are given to fulfil two separate and unique functions.
In the private sector women accrue their Annual Leave entitlements and very often will take these entitlements at the end of their Maternity Leave demonstrating the very unique distinction which we draw between the two types of Leave.
So really the argument would appear to be whether they are entitled to consider all those days when the National School is closed as Annual Leave.
I was invited to consider another sector. The Judiciary operate to the Legal year which again allows for non- sitting days. Are these considered Annual Leave? Perhaps there is more obligation on the Judiciary to use this time fruitfully in catching up in research and writing up Judgements and there are of course Judges on call, summer sittings and emergency sittings which would tend to suggest that the days over Christmas, Easter and Whit break etc are not as free as the National School Teachers will say their days are.
What are these non-term time days if not Annual Leave days? Ultimately the Claimant says that these should be recognised as Holiday type days capable of being built up if lost.
The 1998 Employment Equality Act as amended by the 2004 -
Section 6(2A) provides: -
“Discrimination on the gender grounds shall be taken to occur where, on a ground related to her pregnancy or maternity leave, a woman employee is treated, contrary to any statutory requirement, less favourably than another employee is, has been or would be treated.”
The Claimant says that the less favourable treatment stems now from the fact that women who seek to take Annual Leave entitlements can only do so at the next natural break in the school schedule and cannot take it back to back with recognised Maternity leave periods whether paid or unpaid. They now must make up the time themselves as part of their non-scheduled days off – which, it is noted, they would be getting off anyway.
Looking at the Organisation of Working Time Act 1997 which defines working time:
““Working Time” means any time that the employee is
(a) at his or her place of work or at his or her Employer’s disposal, and
(b) carrying on or performing the activities or duties of his or her work.”
There is no in-between status, says Ms. Bruton, in other words, you are either enjoying leave or you are at your Employer’s disposal.
Looking at the case law Ms. Bruton asked me to look at the at the Gomez decision C-342/01, Merino Gomez  2CMLR 3 where the Employee was engaged in tyre manufacture in Spain and she availed of her maternity leave. The question considered by the Court was whether the Annual Leave accrued during maternity Leave and at paragraph 36 establishes that the Annual Leave accrues outside of the Maternity leave and that the two are altogether exclusive. They cannot run concurrently. Ms. Bruton says this is the Authority for the Complainant’s case that Annual Leave should run after or other than in the course of Maternity leave. The European Court has time and again strenuously protected Maternity Leave and persons on Maternity Leave. It has a sacrosanct importance at European level.
Looking at the Sass Case Land Brandenburg V Sass (C-284/02)  which is an interesting case where the issue was whether or not a woman was entitled to include her periods of Maternity Leave as periods of Service for the purpose of seeking a promotion. Ultimately the court determined that the employer was not allowed to discount these periods of time when the Complainant was out on Maternity Leave for the purpose of recognising service. To have excluded these periods of time would have been to treat the Employee less favourably. This again demonstrates the sacrosanct nature of the concept of not being disadvantaged by reason of taking Maternity Leave. In Land Brandenburg V Sass (C-284/02) [2004), the CJEU upheld Ms. Sass’s rights to retain the various benefits of her employment while on maternity leave. It stated
“It follows from all the foregoing that, although the national legislation provides for maternity leave to protect a woman’s biological condition and the special relationship between a woman and her child over the period which follows pregnancy and childbirth, Community law requires that taking such statutory protective leave should interrupt neither the employment relationship of the woman concerned nor the application of the rights derived from it and cannot lead to discrimination against that woman”.
The Equality Tribunal and the in turn the Labour Court on appeal have taken a strong and proactive approach to allegations of less favourable treatment on grounds of pregnancy and/or maternity leave. This is in accordance with the strong approach adopted by the Court of Justice of the European Union to protection from discrimination on grounds of pregnancy and/or maternity.
Ms. Bruton says that these rights are also expressly recognised in the Recast Directive(Directive 2006/54/EC). This Directive seeks to codify or merge existing community legislation for the interpretation of the principle of equal opportunities and equal treatment of men and women in matters of employment and legislation. The Recast Directive must be considered in interpreting the Employment Equality Act in this jurisdiction. In the preamble at (5) reference is made to Articles 21 and 23 of the Charter of Fundamental Rights of the European Union which prohibits any discrimination on grounds of sex and ensuring the right to equal treatment between men and women in all areas including employment, work and pay. Preamble (24) provides that the Recast Directive should be without prejudice to the Pregnancy Directive (92/85/EC). Preamble (25) recognises the appropriateness of making express provisions for the protection of the employment rights of women on maternity leave in particular their right to suffer no detriment in their terms and conditions as a result of taking maternity leave and to benefit from any improvements and working conditions to which they would have been entitled during their absence.
Article 1 of the Recast Directive provides that the purpose of the Directive shall be to implement the principle of equal treatment in relation to, inter alia, working conditions.
Article 2(2) for the purpose of this directive discrimination specifically includes, inter alia, “any less favourable treatment of a woman relating to pregnancy or maternity leave within the meaning of [the Pregnancy Directive].”
Article 15 provides for the rights of a woman returning from maternity leave to her job on terms and conditions “which are no less favourable to her and to benefit from any improvement in working conditions to which she would have been entitled during her absence”.
Article 28 recognises that the Recast Directive “shall be without prejudice to provisions concerning the protection of women, particularly as regards pregnancy and maternity”.
All of this, Ms Bruton says goes to demonstrate the sacrosanct nature of these issues.
The complainants therefore rely on the extensive jurisprudence not only of this Tribunal but also the Labour Court, the High Court and significantly the European Court of Justice in a strong protection afforded to employees from any form of discrimination that it is in anyway linked to pregnancy or the consequences of pregnancy. There is ample authority in law recognising the rights within European and Irish equality law that the protection from unlawful direct discrimination on grounds of gender, extends to the right not to be subject to direct discrimination on grounds of pregnancy or maternity leave or any consequences thereof such as pregnancy related illness or extended absence on maternity leave.
Ms Bruton referenced some of the relevant caselaw:
The right not to be treated less favourably on grounds of pregnancy and maternity leave has been upheld by the Court of Justice of the European Union in cases such as Dekker v Stichting Vormingscentrum voor Jonge Volwassen (VJV-Centrum) Plus  IRLR 27 ECJ, which found that Ms. Dekker had been the victim of unlawful direct discrimination and conceptualized pregnancy discrimination as direct discrimination on the grounds of gender stating
“In that regard it should be observed that only women can be refused employment on grounds of pregnancy and such a refusal therefore constitutes direct discrimination on grounds of sex. A refusal of employment on account of the financial consequences of absence due to pregnancy must be regarded as based, essentially, on the fact of pregnancy. Such discrimination cannot be justified on grounds relating to the financial loss which an employer who appointed a pregnant woman would suffer for the duration of her maternity leave”
Even before the implementation of the Recast Directive, the Court of Justice had adopted a similar approach to the interpretation of the Amended Equal Treatment Directive. The decision of the European Court of Justice in Busch v. Klinikum Neustadt GmbH & Co. Betriebs-KG  ECR I-2041 demonstrates just how far the European Court of Justice have been prepared to go in protecting employees from discrimination on grounds of pregnancy or the consequences thereof. Ms Busch had a baby in June 2000 and took parental leave which was due to be for a period of three years. In October 2000 she became pregnant again and in January 2001 she requested permission to terminate her parental leave early and to return to full time work in April 2001 at which stage she was seven months pregnant. The nature of her work meant that she was prohibited from working at that stage in her pregnancy. Her employer sought to rescind its consent to her return to work on grounds of fraudulent misrepresentation and mistake. The Court of Justice found the employer was not entitled to do so as they were taking Ms. Busch’s pregnancy into consideration when refusing to allow her to return to work before the end of her parental leave and that constituted unlawful direct discrimination. The Court found that Ms. Busch was not under any obligation to inform her employer that she was pregnant given that the employer could not take her pregnancy into account in deciding whether she could return to work early or not. Neither the financial loss to the employer nor the legislative prohibition on her performing all her duties because of her pregnancy could justify that discrimination. Neither did the fact that her return to work mean that she would receive a maternity allowance higher than her parental leave allowance.
The Claimants will also rely on the case of Sarkatzis Herrero v. Instituto Madrileño de la Salud (Imsalud)  IRLR 296 where the Court recognised the aim of the Equal Treatment Directive as being to ensure “substantive not formal equality” (at paragraph 37 of its judgment) and pointed out that in those circumstances.
“Articles (1) and (3) of that Directive must be interpreted as precluding any unfavourable treatmentof a female worker on account of paternity leave or in connection with such leave, which aims protect pregnant women”.
In Ireland, it is clear that these principles have been followed. The complainants rely on the comments of the Labour Court in Trailer Care Holders Limited v Healy EDA8/2012 where it said it was “abundantly clear” that women were entitled to special protection from adverse treatment from the commencement of their pregnancy until the end of their maternity leave. The entitlement of that protection was to be regarded as
“afundamental and inviolable right within the legal order of the [European] Union which the Courts and Tribunals of the Union must vindicate within the limits of their jurisdiction”.
The complainant has further relied on the previous decisions of this Tribunal in which a similarly strong approach has been adopted towards adverse treatment of a female employee upon her return from maternity leave where that adverse treatment is deemed to be linked in any way to the fact of the maternity leave. In Lane v MBNA (DEC-E2008-051) the Equality Tribunal referred to the decision of the Court of Justice Dekker  ECR I-3941 and on the then applicable Amended Equal Treatment Directive which, inter alia, provided for the entitlement of a woman on maternity leave, after the end of her period of maternity leave, to return to her job or to an equivalent post on terms and conditions which are no less favourable to her and to benefit for any improvement in working conditions to which she would be entitled to in her absence (in similar terms to Article 15 of the Recast Directive). Whilst that Directive has since been replaced by the Recast Directive, it is the Directive which applies at the time of the complainant’s return from maternity leave in August 2008 as the implementation date for the Recast Directive occurred a number of days following her return to work.
In the Lane v MBNA case, the Equality Tribunal accepted the complainant’s evidence that shortly before returning from maternity leave, she was discouraged from applying for a job for which she considered herself suitable. The position was filled by a single woman with no children who did not have the qualifications that the complainant was told were necessary. The Equality Officer found that the complainant had established facts from which an inference of discrimination may be drawn and therefore found that, pursuant to Section 85A of the Act, facts had been established by or on behalf of the complainant from which it may be presumed that there has been discrimination in relation to her. The Equality Officer found on the facts that the Respondent failed to invoke the inference of discrimination against the complainant in respect of the actions that took place before and after she returned from maternity leave and therefore found that the Respondent did discriminate against the complainant on grounds of gender in terms of Section 6(2)(a) in relation to the promotion/regarding and conditions of employment contrary to Section 8 of the Acts.
The complainant further relies on the decision of O’Flaherty v Univenture Ireland Limited DEC E-2010 094 in which reference was made to the caselaw of the European Courts of Justice outlawing any unfavourable treatment of a woman related to pregnancy or maternity as direct discrimination on grounds of gender. The Equality Tribunal found that this law had been incorporated into Irish law at Section 6(2)(a) of the Acts.
Ms Bruton invited me to consider Article 9 of the Recast Directive which sets out examples of discrimination. Article 9 gives examples of Discrimination at 1(g ) to include
“suspending the retention or acquisition of rights during periods of maternity leave…which are granted by law or agreement and are paid by the employer”
This is relevant says Ms. Bruton as the Employer Respondent has most certainly “suspended” the Workers’ rights which should be acquired in the course of a Maternity Leave. In fact, the complainant herein would go so far as to say that the state has extinguished the rights of the employee herein.
Ms. Bruton asked me to look back at circular 0034/2011 and Circular 09/2013. We know the school has to be open for teaching purposes for 183 days of the year. The subsequent circular of 2013 points to existing “school closure days” whilst the 2011 circular references the “holidays” Christmas, Easter even Religious Holidays. There is a subtle shift in emphasis. The underlying narrative is that there is no concession of an entitlement to further free days. This is how the school year operates and there is only now an entitlement to 20 days of Annual leave only to be taken at identified times of the year just. The crux of the Claimants claim is to urge that I recognise all these school closure days as leave days as there is no requirement to work and no requirement to be available to work (per the Organisation of Working Time Act).
At this point the Counsel for the Claimants introduced one of the Claimants to give evidence. Ciara Fitzgerald a teacher in Renmore National School in Galway. Ms. Fitzgerald had taken a previous Maternity Leave so that in May of 2009 she went out on her initial 26-week period of paid Maternity Leave which ended in November of 2009. Directly after that Ms. Fitzgerald took what she described as her paid Leave in Lieu period for a further six weeks up to February 2010 (30 days) which she believed represented her entitlement to have the leave she would ordinarily have taken in the summer and Christmas. Her employer recognised her entitlement to these days which would otherwise have been lost to her. Ms. Fitzgerald thereafter took her Statutory entitlement to Unpaid leave which lasted a further 16 weeks. The Claimant was gone from the workplace for 72 weeks.
Ms. Fitzgerald had a second pregnancy in 2013. Her Maternity leave started in May of 2013 and ended in November 2014. When the complainant was 12 weeks pregnant the Minister announced that accrued Leave in lieu which this lady had heretofore enjoyed was going to be done away with. In the circumstances, Ms. Fitzgerald for her second pregnancy, moved straight form her period of Maternity leave to Unpaid leave. The hitherto enjoyed buffer period of paid leave in lieu having the status of accrued annual leave was lost to her.
Ms. Fitzgerald gave very definite evidence that she regarded the days that the school was closed over the summer period, Christmas and Easter etc as Holidays or Annual Leave and in particular she gave evidence that she does not work in these periods and would never be expected to do any school related work or preparation or research or tasks associated with her classroom obligations on the days that the school is closed.
Ms. Fitzgerald stated that the principal would not ever contact her when the school was closed for the scheduled closures. She was not therefore available to do or to discuss work.
Ms. Fitzgerald did accept that since the implementation of the Croke Park agreement she has from time to time been called into the workplace in the days before the re-opening of the school for a day of preparation as envisaged by Croke park. These are one-off days agreed to, she said.
In cross examination, the witness confirmed that after taking her maternity leave paid and unpaid that she also availed of parental leave which ran to the 29th of June 2013. At that point – 30th of June 2013 – the school year finished and the Complainant commenced her Annual Leave alongside her colleagues both male and female.
Ms. Fitzgerald was invited to consider the academic year from September 2012 to August 2013 and in doing so she was able to confirm that she had had time off at Halloween (5 days) Christmas time (10 days) Midterm (2 days) Easter (10 days) and two Bank Holidays in March and May. In short, this witness had already had 29 days of school closure days albeit 8 of which were Public Holidays. This was taken in advance of the Maternity Leave entitlement which commenced in the middle of May 2013.
On a further point the witness accepted that she is made aware of Department circulars that directly affect her. Schools implement the Circulars after the Circulars are published. The Witness accepted that the Circulars arrive and very often do serve to change things after their implementation. A good example of this is the Croke Park agreement.
On re-examination the witness indicated that the 29 days (now expressed by Circular) does not represent all her Annual leave entitlements as her male and female colleagues not availing of maternity leave are guaranteed not only that amount of Annual Leave but way more - up to circa 70 days.
The Complainant’s second witness was a Ms. Helen Donnelly of Walkinstown National School. This is the Claimant in the within proceedings. In September of 2013 she commenced a period of paid Maternity Leave followed by a period of 14 weeks unpaid leave which brought her up to the middle of June 2014. While out on Maternity Leave this witness gave evidence that she missed her Christmas, Easter and Mid-term periods of school closure. Ms Donnelly indicated that she believed that her Male colleagues all had the benefit of those periods of closure and that as such it is a recognised part of the job. She was adamant that when the school closes per the academic schedule then this is “holiday time” and she is not obliged to work or make herself available for work. This witness went as far as to say that she considered non-classroom days to be “time off”. In her experience, Ms. Donnelly stated that she has never been directed to make herself available for work during these times of closure other than recently with the introduction of the productivity day sometimes required under the Croke Park arrangement. This witness did state that she understood that the changes which have been brought about have been brought about in the context of a budgetary cost cutting exercises.
In cross examination this witness stated that she only generally worries about circulars when they directly affect her and that the School Principal will usually refer them on to her if there is some relevance to her.
At one point I did ask what is the significance of only allowing 30 days in lieu i.e. having a cap on the days, as it is conceivable that a teacher out on maternity leave would easily miss well in excess of the 30 days of school closure which has been allowed? After all, if a school closure day is in fact a day of Annual Leave (per the Complainant) then there can be no cap of 30 days Annual Leave as, per the school diary, Annual Leave would amount to upwards of 70 days. So, for example if someone’s maternity leave included the full period of 40 days for the summer vacation why is it capped at 30 days Leave in Lieu?
Counsel for the Complainant conceded some hybrid status but nonetheless it cannot be working time. There is no intermediary position open to the state to rely upon. It is either working time or it is not. If they are not available for work – it is not working time therefore it is Annual Leave. The Claimant makes the case that up to 70 days must be recognised either by Statute (where it is clearly not working time) or by an implied term of the Contract of Employment). As a result of which there is up to 70 days of Annual leave. No doubt that there are up to 70 days in the annual year where National school teachers are neither expected to be in the classroom teaching nor outside the classroom preparing for the teaching. This has been given in evidence and not challenged.
Summary of the Respondent’s position
The Respondent opted to present their Witness Mr. Alfie Barrett in advance of presenting their Submissions. Mr. Barrett is the Principal Officer in charge of terms and conditions for teachers and Special Needs Assistants and is based in Athlone. He is familiar with the terms and conditions contained in the circular which this process is scrutinising. Mr. Barrett stated that Policy is determined and gets issued and is implemented by law and made known by Ministerial Dictate through Circulars. The Statutory Basis for this is the Education Acts. When the Minister exercises his/her power the Department gets the Direction on policy and then prepares the Circulars to be sent to the schools. There have been a number of Circulars concerning Maternity Leave over the years. The one in question here is Circular 9 /2013 and was issued post Budget and in response to same
The Circular provides for Maternity Leave to include 26 weeks of paid leave and 16 unpaid weeks of leave thereafter. The Circular also gives guidance on the issue of what level of Annual Leave an Employee is entitled to and this has been set at and for the first time articulated to be 20 days with the 9 Public Holidays to be added to that. This was admittedly the first time that Annual Leave was defined in a circular. Mr. Barrett also specified that it has always been the case that teachers have taken their Leave in periods of school closure. There simply is no precedent for looking for Annual Leave during term time. He further indicated that Parental Leave and Adoption Leave operate in much the same way as Maternity Leave.
In cross examination the witness indicated that he had been acting up at the time of the draft and therefore had been personally involved in its preparation. The witness was invited to consider the earliest relevant circular 19/90. In particular the witness was asked to consider rule 119 (iii):
“Where maternity leave overlaps school vacation a teacher will be entitled to leave in lieu with pay for vacation days overlapped subject to a maximum of 27 days in any calendar year The overlapped days for which the teacher will be entitled to leave in lieu are general school vacation days…..”
Mr. Barrett recognised and understood that a rights Commissioner Decision might have given rise to this Circular (i.e. the McKiernan case referenced earlier). Ultimately it would have been negotiated with the Unions.
In December 2012, the then Minister Rurai Quinn proposed this change in policy and the only purpose was to save costs. There can be no doubt that the previous policy of allowing for the 30 days of accrued Leave pay was an unambiguous acknowledgement of their loss of closure days.
The witness stated that the Maternity Leave is not lost, diminished or interfered with in any way. Nor do the Claimants return to the workplace on lesser or diminished terms and conditions
The 2013 Circular articulated that Annual Leave stood at 20 days and this was the first time this had been clearly enunciated.
The requirement on the teachers was that they are available to be in the classroom for 183 days per year. That is the requirement. The witness stated that there is a distinction between teaching and working. There is certainly an obligation on teachers to teach for 183 days i.e. in the classroom setting. They also clearly have an entitlement to annual Holidays. However, the balance of the days cannot be classified as non-working or forming part of an annual leave entitlement. Having just listened to the evidence provided by the two witnesses gone before him, Mr. Barrett did state that just because there is no Circular expressly dealing with the point, there is an expectation that on the non-classroom based days there is an expectation that teachers would use some non-classroom days for the purpose of fully preparing for the term ahead. This was in direct contradiction to what the two teachers had said in their evidence. He emphatically rejected the second Claimant witness evidence that non-classroom days should be seen as “time off”.
On re-examination the witness was asked what would happen if the Minister increased the teaching days from 183 to 187? The witness explained that that would be the Minister’s Decision to make but the implementation would be by way of circular and there would be negotiation around that with the relevant Unions but that whilst objection may be made, the ultimate power does vest in the Minister. The bottom line is that the Department and the Boards of Management of Schools would be contractually obliged to abide by any such published circular. This witness refused to accept that the 2 teacher witnesses I had heard give evidence were entitled to take the position that they should never use days when the school is closed for non-classroom based work such as correction, preparation and research etc. This witness said that plenty of National School Teachers would use this time in the constructive preparation of their classroom days.
This witness stepped down. At this point, Counsel for the Respondent Anthony Kerr SC sought to address me on the generality and historic backdrop to this claim. He indicated that there were up to 12 National Schools who had brought Maternity claims before the Employment Appeals Tribunal. The claims had come through the Rights Commissioners where I understand that the Teachers were not successful and that when the matter came before the EAT an argument was made concerning the Time limits under the Maternity Act which it was proposed were a violation of EU law. Clearly the EAT has no authority to set aside portions of domestic legislation and the matter appears to be unfinished and the status of these claims is unclear to me. I have been advised that ASTI are also bringing or have brought claims and are perhaps seeking clarity in this decision before making progress in other cases pending.
In any event, I was advised by Mr. Kerr that none of this backdrop should have any bearing on the matter before the WRC and this Adjudication process.
Gerard Durcan SC then addressed me on the law using his own submission and book of Authorities to support his oral submission. Mr Durcan started by outlining the primary parts of the relevant legislation here which include:
Organisation of Working Time Act 1997 - and sections 19 and 20 thereof wherein paid annual leave entitlements are set out. An employee shall be entitled to paid Annual Leave equal to 4 working weeks in a leave year in which he works and the time when Annual leave shall be granted subject to the employer’s determination of what is required in the workplace.
Maternity Protection Act 1994 (as amended) - and in particular section 8 which provides for the 26 consecutive weeks and Section 14 which allows for an additional maternity leave of 16 weeks whilst Section 22 (4) ensures that this protected leave shall not be treated as part of any other leave entitlement e.g. Annual or Sick leave.
Employment Equality Act 1988 - and in particular the general prohibition against discriminating against employees in the workplace per section 8
“8. — (1) In relation to—
- access to employment,
- conditions of employment,
- training or experience for or in relation to employment,
- promotion or re-grading, or
- classification of posts,
- Section 6. -(1) sets out the circumstances in which discrimination is taken occur:
- an employer shall not discriminate against an employee or prospective employee and a provider of agency work shall not discriminate against an agency worker.”
“For the purposes of this Act, discrimination shall be taken to occur where, on any grounds in subsection (2) (in this ACT referred to as the discriminatory grounds) one person is treated lass favourably than another is, has been or would be treated”
Section 6. -(1) provides:
“As between any 2 persons the discriminatory grounds (and the descriptions of those grounds for the purposes of this of this Act) are –
- That one is a woman and the other is a man (in this Act referred to as the “gender ground”)”
Section 6. -(2A) provides: -
“Discrimination on the gender grounds shall be taken to occur where, on a ground related to her pregnancy or maternity leave, a woman employee is treated, contrary to any statutory requirement, less favourably than another employee is, has been or would be treated.”
Mr. Durcan went on to specify that these statutory provisions are reflective of the obligations set out at a European level and in particular the Pregnant Workers Directive 92/85/EEC. Annual Leave is also addressed at European level through the Working Time Directive 2003/88/EC.
Mr. Durcan drew my attention to the Recast Equality Directive 2006/54/EC which specifically sets out to ensure that that the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation is enshrined.
My attention was drawn to Article 15 which provides that:
“A woman on maternity leave shall be entitled, after the end of her period of maternity leave, to return to her job or to an equivalent post on terms and conditions which are no less favourable to her and to benefit from any improvement in working conditions to which she would have been entitled in her absence.”
A number of cases concerning the importance of Annual Leave at a European leavel were opened to meand there can be no doubt that –
“… the entitlement of every worker to be paid Annual Leave must be regarded as a particularly important principal of European Union social law from which there may be no derogations…” per the Court of Justice in case C-173/99 BECTU  ECR 1-4881.
The BECTU case establishes that annual leave is a very important social right and that there is the proviso that Member States may have to put in place mechanisms to determine when a worker can take such leave.
Again, I was asked to consider the case of C-342/01 Merino Gomez  2 CMLR wherein the issues of Maternity Leave and Annual Leave collided. The case establishes that a worker is entitled to take her annual leave during a period other than the period of her maternity leave. Maternity and Annual leave are separate and distinct leaves seeking to achieve different objectives. I should understand that good sense of course dictates that maternity leave should be triggered by the birth or imminent birth of a baby. Annual leave is not subject to any such strictures and annual leave can therefore be taken at any time as might be reasonably and mutually agreed between the parties and subject to the demands of the workplace. A worker is therefore entitled to take her annual leave during a time other than the period of maternity leave.
In the case of C124/05 Federatie Nederlandse Vakbeweging -v the Netherlands  ECR 1-13423 the Court stated that best practise would allow for leave to be taken within the prescribed leave year but that carrying forward leave may sometimes be necessary.
In the case of C-116/06 Kiiski  ECR 1-179 the Court makes clear that any circumstanes which give rise to the treatment of a pregnant woman who has taken maternity Leave in a less favourable way constitutes direct discrimination.
The important cases of C-350/06 Schultz-Hoff  ECR 1-179 and subsequent case of KHS AG -v- Winfried Schulte C-214/10 dealt with the parallel entitlements to sick leave and annual leave the latter case found a period of 15 months during which annual leave could be carried over could be reasonable. The Schultz-Hoff case
is authority for the principle that national law cannot validly provide that a worker is deprived of the opportunity of availing of annual leave by reason of the fact that the worker can only claim that leave during a period when he or she is absent from work on sick leave.
Closer to home, Mr. Durcan referenced the English case of Russell -v- Transocean International Resources Limited UKSC57 as having relevance to the legal issues before this Adjudication. In that case workers worked two weeks on an oil rig and two weeks off the oil rig. In this case the Court finds that the:
“…the European Court of Justice has not said that a pre-ordained rest period, when the worker is free from all obligations to the employer, can never constitute annual leave within the meaning of that article. I would therefore hold that “rest period” simply means any period that is not working time.”
Interestingly. Lord Hope herein also references teachers “… who are required to take their annual leave during term time..”.
The legislation, Directives and caselaw establish therefore, according to Mr. Durcan, that a worker is Statutorily entitled to four week leave period and that a National Parliament can determine when a leave year can start and finish. There is no doubt that the school leave year runs from the period 1st of September through to the 31st of August and there is no argument in this regard (per circulars 40/98, 33/00 and 29/02). Our legislation provides that Annual Leave must be taken in the leave year when the entitlement arises save insofar it has been agreed for a delay not exceeding a further six months (Section 20(1)(c) of the Organisation of Working Time Act 1997).
When leave is to be taken, must sometimes be left to the discretion of the Employer for the practical reason of allowing the Employer to cater to the needs and requirements of the workplace. Teachers are subject to this principle and so long as the objective of giving a worker a period of rest and leisure is satisfied, then the stipulation that teachers must take their annual leave in periods when the school is closed is not per Mr. Durcan contrary to any worker rights. It is further noted that in the case of a teacher who has availed of Maternity Leave and who returns to work at a time when there are insufficient days of school closure to allow her then to avail of her Annual leave in the leave year in which she has returned she they can in fact take that Annual leave due to her during those periods when the school is open as may be necessary to satisfy their requirements.
In his submission, Mr. Durcan says that an analysis of the current legal position is such that the Court of Justice expressly contemplates and acknowledges that the aggregation of several periods of leave guaranteed by European Law may inevitably bring about a situation that it may be impossible to avail of the entirety of annual leave entitlement in the leave year in which it arises. In such circumstances the case law refers to and accepts the concept of a “carry over period”. Such a period is applicable to a situation where an employee is for some reason (such as being on another form of leave) prevented from exercising the right to annual leave during the leave year in which it arises. In such circumstances the employee is entitled to carry over leave and the “carry over period” must be of sufficient length to allow the employee to avail of annual leave which is staggered and planned.
In addition, Mr. Durcan has also says that if there are insufficient days of school closure to allow teacher’s avail of their annual leave entitlement in the leave year in which it arises, they can take annual leave during periods when the school is open as may be necessary to satisfy their entitlements.
The Education Amendment Act of 2012 amended the earlier Education Act of 1998 and in particular Section 24 of the older Act reads that –
“… the Terms and conditions of employment of teachers …who are remunerated out of monies provided by the Oireachtas shall be determined from time to time by the Minister with the concurrence of the Minister for Public Expenditure and Reform.”
In practise the evidence is that the changes to Terms and Conditions is notified through the operation of providing circulars. Changes to Terms and Conditions are of course subject to the restraints inherent in National and EU Laws. It was on this basis that the contentious circular the subject matter of these proceedings was brought into being in 2013. The Circular confirms that the annual Leave entitlements of Teachers is 20 days. These are not fixed dates but the proviso is that that they should be taken on days when the school is closed. The Public Holidays of which there are 9 are fixed and observed.
A distinction is clearly being drawn between what might be considered school closure days and Annual Leave days and Mr. Durcan urges that I hold that the practise of having time off from school does not create a holiday time and in fact the evidence is that the Minister by Circular could at any time direct that the obligation to be in the classroom for 183 days could in principle be increased or decreased without reference to the workers and there would be an obligation to comply with same. Effectively, this is what happened when the Croke Park arrangement was introduced.
The crux of Mr. Durcan’s case is that whilst there may be a long-standing workplace practise in place, this practise is not immutable to change save insofar such a change is within the law. In practise, because of the way the School calendar operates, the Teachers are away from the classroom for periods in excess of their Annual leave entitlements. However, this is not considered by the Minister to be a statutorily recognised leave and it remains an ill-defined absence from the workplace for which there is no actual entitlement. In the case C124/05 Federatie Nederlandse Vakbeweging -v the Netherlands  ECR 1-13423 the Court recognised that the Minimum period is capable of being protected by European Law but any enhanced period of time could for example be replaced with payment in lieu arrangements being available. Therefore, even if the teachers had some sort of greater entitlement to Annual Leave than that set out in the domestic Act, it is not covered and is not protected by EU Law.
The fact that teachers get some sort of additional leave is a Contractual arrangement necessitated more by the way the school year runs than by reason of some over-arching compliance with an EU Directive or a protection of some inherent right. The reasoning in C-342/01 Merino Gomez  2 CMLR cannot apply to any extra leave which may or may not exist.
Looking again at Section 22 of the Maternity Act wherein the principle is stated that when an employee has been absent by reason of Maternity Leave she must be treated as if she had not been absent on her return to the workplace and that her Contractual and legal rights “shall not be affected” by reason of having taken her leave. However, it is also not desirable that a teacher on maternity leave should somehow have beneficial or enhanced rights over and above teachers of both sexes who are not out on Maternity Leave. A period of Maternity leave should certainly not affect the post-partum worker’s rights, but nor should a period of Maternity Leave serve to enhance and or extend rights.
The case law and legislation protects the minimum period of 20 days and has at last been articulated in the Circular but the case law cannot protect the balance of those days which have been allowed heretofore by custom and practise. These days have been created by way of custom and practise and can and are being removed by the very same process. That which is created by agreement can be changed by agreement or operation of the law.
The Respondent states that even if there is an agreement that the teachers are entitled to an Annual Leave over and above the Leave expressed in the circular i.e. the 20 days – it is essential to maintain the understanding that such leave can only be taken during periods of school closure. The Teachers have their protected Statutory entitlements intact during any leave year. There is in fact no Contractual or other right to Annual leave over and above the 29 days recognised and even if there was these are expressly limited to periods of time when the school is closed and this principle applies to everyone - men, women, mothers and fathers.
The newly applied regime does not, Mr Durcan submits, breach Irish Law nor European Law and does not impose a discrimination based on the gender of a worker.
Summary of the Claimants’ Reply
In her Reply, Ms Bruton notes that the Respondent has not sought to refute the evidence of its own witness Mr. Barrett wherein teachers not only are not required to teach they are not required to undertake any duties whilst the schools are closed. Indeed, the older 1990 circular references the periods of time wherein schools are not opened are described as “vacation”.
Ms. Bruton says that the issues raised in Russell -v- Transocean International Resources Limited UKSC57helps the Complainant’s case where the Court recognises that rest means actual rest and there is no assertion -
“that a pre-ordained rest period when the worker is free from all obligations to the employer, can never constitute annual leave within the meaning of that article”
Ms. Bruton rejects the Respondent proposition that there is no ability for Annual leave to be taken outside of school closure periods. The Pre- 2013 situation saw the practise of allowing women who had been out on maternity leave to take their days in lieu (those days accumulated during periods of school closure) on days other than school closure days. The Respondent case, she says, ignores the salient point that male teachers get these days closure days as “vacation” days for the duration.
Ms. Bruton challenges the Respondent’s argument as it effectively extinguishes the days of closure and asked where is it that these days go?
The Complainant does not challenge the entitlement to issue Circulars but this can only be done in a non-discriminatory way
Conclusions of the Equality Officer
I have carefully considered the matters presented to me in this case.
The parties’ representatives presented a fairly detailed look a the relevant Statutory provisions together with an analysis of the application and interpretation of the Law and I have considered the many Authorities provided to me and which have been very useful.
I am satisfied that certain matters are self -evident. For example, before 2013 National School Teachers were not advised what exactly their entitlements to Annual Leave were intended to be.
Quite clearly, since it’s inception the Organisation of Working Time Act imposes a 20 day minimum entitlement to Annual Leave.
The way the School year operates it is accepted that as a matter of fact Teachers have way more than 20 days where they are not obliged to be in the workplace and/or otherwise might be at the disposal of their Employer.
Despite the clear evidence of the two teachers who gave evidence, I do not accept that some teachers do not perform an amount of work (however small) on some of the days that are scheduled for school closure. In this regard I found the “Intouch” circular printed by the INTO in October 2014 (and provided by the Respondent after the hearing – though on notice to the Claimant) to be closer to what is expected of Teachers –
“The LAG reports on but doesn’t quantify the significant amount of time spent by teachers on non-teaching work. These activities include individual planning, preparing lessons, teamwork, dialogue with colleagues, communicating and co-operating with parents, correcting student work, general administrative communication and paperwork, professional development….etc”
I therefore cannot find that every single day of school closure can be classified as a day of Annual Leave. There is an assumption that teachers a little less organised than the two who gave their evidence to me might find the days of school closure to be useful to catch up and prepare. It would in any event, be perverse to make a finding that a small number of State paid Employees would be entitled to a full 70 days of Annual Leave.
Neither party was in a position to definitively define the status of these days and quite simply they are days of school closure. I further accept that heretofore at least 20 of those 70 days must have had the status of Annual Leave and that remains the case.
I would also accept that for reasons of good management and planning Annual Leave must be taken to co-incide with the days that the school is closed anyway.
I accept that the provision of a mere 20 days Annual Leave by way of 2013 Circular was a stark reminder that not every day taken off in consequence of school closure was intended to be a holiday. However, whilst it was a blunt instrument, it in fact didn’t change anything and in general terms and National School Teachers continue to have up to 70 days of school closure a year of which they must consider 20 to be their Annual Leave entitlements. The fact and amount of Annual Leave has now been articulated. The status of the other 40 days is unclear (allowing for the 9 days of Public Holiday).
I am satisfied that however slowly and or tentatively done in the past, there is scope for an encroachment on the School Closure days. This was evidenced in the Croke Park deliberations.
On balance therefore I cannot and do not accept that the Claimant is entitled to 14 weeks of Annual Leave either by Statute or by reference to some Contractual understanding.
I further accept that the 20 day Annual Leave entitlement for Teachers should only be taken in tandem with School Closure days. I would also accept that there is no inherent entitlement either in the Public Service or in the Private Sector that Annual Leave entitlements have to be taken at the end of a fixed term of Maternity Leave. This is something which may be arranged at a local level and depending on the needs of the workplace. With Teachers though the Annual Leave will generally be taken on school closure days.
Neither party was able to satisfactorily categorise the status of the other 40 days of school closure. Whilst I have acknowledged that some of these dates might be described as working time for the purpose of the Working Time Act I would accept that the majority of that the time is akin to holiday time and treated as holiday time.
The Clamaint and her colleagues want me to enhance the status of these school closure days so as to protect them as some form of protected leave which cannot clash or run concurrently with Maternity Leave.
If the Claimants were successful then the law both at home and at European Level is absolutely in their favour. I fully accept for example, that Annual Leave and Maternity Leave cannot run together and that there is a right and expectation that a Mother will not be disadvantaged by reason of having taken Maternity Leave and nor will she return to the workplace on lesser terms and conditions.
Before 2013, of course school closure days were afforded some sort of status and teachers who missed them whilst out on Maternity Leave could accrue losses and take extra paid leave at the end of their Statutory Leave. However, I have noticed that even before 2013 there was an arbitrary cap of 30 days placed on the entitlements which might accrue. This despite the fact that a Teacher out on Maternity leave might lose out on up to 50 days of school closure.
I believe that this acceptance of the 30-day limitation was a recognition that the arrangement operated as an enhancement to the general norm. The entitlement of up to 30 days extra paid leave was over and above what any other class of employee taking Maternity Leave was was entitled to. The entitlement was created by Circular and removed by Circular.
Whilst the Claimant, I accept, is justifiably upset at the change in how her second Maternity Leave operated compared to her first I am persuaded that the upset comes from the loss of a privilege and not from an active discrimination being perpetrated by her Employer.
The Claimant returns to the workplace having suffered no detriment and with no diminution to her terms and conditions of employment as a result of being out on Maternity Leave. She comes back on an equal footing with her colleagues. She has twenty days Annual Leave (to be taken in school break dates or schooltime if there is insufficient dates left) and she continues to enjoy the balance of the School closure days alongside her collegues.
For the purpose of clarity, I confirm that the decision herein is made soley in respect of the Claimant Helen Donnelly.
The Claimant did not pursue her claim against the Board of Management of the National School where she is engaged to work. For the purpose of this claim the Department of Education and Skill is the appropriate Employer and the hearing was dealt with on that understanding. I find that the Claim brought against the Board of Management at Assumption National School, Walkinstown therefore fails.
The Claimant’s allegegation was that a Department of Education and Skills Circular (9/2013) which came into effect on the 1st of May 2013 operates to discriminate against her on the ground of her gender and in particular she claims that tshe is now being treated less favourably than her non-pregnant colleagues as they are not being afforded the same entitlement to annual leave and public holidays.
I do not find that there has been a discrimination and consequently the claim under the Employment Equality legislation must fail.
Penelope McGrath BL
Equality Officer/Adjudication Officer
24th September 2018