ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00022647
Sean Loughnane Galway Ltd
t/a Rudd's Fine Foods
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998
Date of Adjudication Hearing: 27/01/2020
Workplace Relations Commission Adjudication Officer: Marguerite Buckley
In accordance with Section 79 of the Employment Equality Acts, 1998 - 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
The Complainant’s case is that she was discriminated against by her employer in relation to her conditions of employment and in dismissing her from her employment on the grounds of gender and family status which amounted to a discriminatory dismissal.
Summary of Complainant’s Case:
The Complainant commenced employment with the Respondent on the 1st of September 2005. She started work as a general operative and was promoted to team lead and before the termination of her employment she worked as a supervisor.
The Respondent is a producer and retailer of specialised pork products.
A transfer of undertaking of the Complainant’s employment took place on the 28th of October 2017 from the Complainant’s previous employer to that of the Respondent.
The Complainant worked a forty-hour week at a rate of over €14.00 an hour. She was in receipt of a gross weekly pay of €576.00.
The Complainant commenced a maternity leave on the 20th of November 2018. She calculated she was due to return to work on the 1st of July 2019. At the end of her statutory maternity leave she took annual leave.
The Respondent general manager contacted the Complainant by phone on the 21st of May 2019. He explained to her that he wished to explain the current business situation to her. He mentioned redundancy but expressed his wish to avoid any such action.
The Complainant agreed to meet with the Respondent and a meeting was scheduled for the 29th of May 2019. When the Complainant received a letter from the Respondent dated 22nd May 2019 by email and registered post setting out in detail what was to take place she became extremely stressed and the meeting was postponed until the 24th of June 2019. The letter from the Respondent to her stated that the aim of the scheduled meeting was to give her a chance to discuss the proposed redundancy in more detail and
The letter went on to state that following the discussion meeting, the Respondent would take into consideration any suggestions she may have and would then arrange an outcome meeting.
The Complainant’s partner attended at the meetings to support her and take notes.
The minutes of the meeting were produced to me.
The Respondent advised the Complainant as to the developments in the business during her maternity leave and how they had three new supervisors. The Complainant was advised that the business had changed while she was on maternity leave. She was advised that the business had “settled down” and there were new operating systems in place.
At the meeting the Complainant was offered a general operative position working on the factory floor. The Complainant queried as to whether her job she did before was gone and she was advised that it was.
The meeting was adjourned to the 26th of June 2019. On that date the Respondent discussed alternative positions in the company for the Complainant. The Complainant was advised that the general operative role would be completely different from the role she previously held. She was advised it the hours would be 8.00 a.m. to 5.00 p.m. and the rate would be €9.80.
The Complainant was also advised she would be put on a six-month probation. The Complainant expressed her dissatisfaction with this. The Respondent explained the alternative to taking up this role was redundancy and explained how a redundancy payment would be calculated, taxed and her notice of termination payment taxed. The Respondent advised her that her options were to accept the general operative role or redundancy.
The outcome meeting was held on the 28th of June 2019. Again, I was provided with minutes of the meeting. The Complainant was presented with a typed letter advising her that it was not possible to find any solution to the problem other than to make her compulsorily redundant. The Complainant was given the right of appeal to one of the directors of the company within five working days stating the grounds of appeal.
The Complainant advised at the meeting she did not agree with the outcome and she would not sign for it. She advised them she thought they were wrong and that it was unfair. She said she loved her job and she walked out of the meeting.
On the 1st of July 2019 the Complainant’s solicitors wrote to the Respondent advising that she was entitled to return to her job after maternity leave under terms and conditions no less favourable than that which would have been applicable had she not been absent from work after having a baby.
The letter went on to say that once she announced her pregnancy she was treated in a discriminatory manner by the Respondent. It outlined how she was excluded from training courses provided to other employees and her mobile phone was taken from her and her email disconnected. The letter confirmed that refusing to allow the Complainant to return to her job or a suitable alternative position amounted to discriminatory treatment. It set out that all trust and confidence in the relationship had broken down.
The Respondent proceeded with its decision to terminate the Complainant’s employment and transferred the redundancy payment and notice payment to the Complainant’s bank account.
The Complainant’s solicitor wrote to the Respondent on the 10th of July 2019 noting the payment. This letter set out that she did not believe this to be a genuine redundancy and had lodged a claim for discriminatory dismissal with the WRC. She confirmed that the Complainant was going to transfer this payment to her solicitor’s Client account which would be held on trust pending the outcome of the case. The letter set out “this should not be construed as her accepting the redundancy”.
The Respondent replied on the 11th of July 2019 to the letter of the 1st of July 2019 and advised that there were no relevant training courses that the Complainant was excluded from. It set out that the Complainant was put on a PIP (performance improvement plan) which outlined an excel course that she could attend. This course was available upon her return to work.
In summary the Complainant’s case was that she was discriminated against within the meaning described under Section 6 (2) (a) of the Employment Equality Act in that the Respondent did not comply with its statutory obligations under Section 26 and/or Section 27 of the Maternity Protection Act 1994. She submitted that refusing to allow her return to her job or a suitable alternative employment following her maternity leave amounted to discriminatory treatment on the grounds of gender. She submitted that offering the Complainant who was a permanent employee a contract on a substantially reduced salary on a six-month probationary period could not be considered to comply with the requirements set out in Section 27 of the Maternity Protection Act 1994.
She submitted that while she was on maternity leave the Respondent’s business continued to grow and the Respondent had bought new machines for the plant. When questioned the Respondent confirmed that they had engaged three additional supervisors. The Complainant submitted that some of the new supervisors were working for the Respondent for less time than she was. The Complainant gave evidence that she felt she was more qualified than the man who was promoted as supervisor in the warehouse and that she had trained one of them for work in the warehouse.
The Complainant obtained work at the end of October 2019 through contacts she had with her previous employer. Her new role is a substantially further distance away and entailed a 2.5 hour round trip daily commute. The Complainant explained that commute extended her working day to such an extent that she had to pay for additional childcare. This additional cost is €100.00 per week. In this new role she was now returning home at 6.30pm whereas previously she was home at 5.00 pm. When employed by the Respondent she lived fifteen minutes away from the workplace.
The Complainant submitted that her dismissal seriously damaged her reputation.
Summary of Respondent’s Case:
The facts of dismissal were not in dispute.
The General Manger of the Respondent explained that when it acquired the business the Complainant was working in under a TUPE transfer in 2017, the production planning manager for the Respondent was only “getting to grips” with the production plan for a sister operation and he was not able to take over this plant from day one of the Respondent’s ownership.
The witness went on to explain that while the Complainant was on maternity leave, a general review of the planning process took place. The production planning manager was then more familiar with the business and its products. In November 2018 he reviewed the planning process in the plant and identified areas that required streamlining. The previous operation system engaged in the Respondent’s business ceased in operation on the TUPE transfer and planning for the factory reverted to preparation on Excel and Sage. The review and streamlining of the production ordering process was carried out. It took these functions from the Complainant’s role and transferred them to a sister plant. The other sundry tasks completed by the Complainant which included freezer stock management, supervising printing room, supervising packaging store and supervising intake in dispatch were distributed to different departments within the Respondent. The Respondent submitted that managing the labelling room would not be a suitable function for the Complainant and this was now managed by production. The new process development is now dealt with by a different department.
The general manager confirmed that the three new supervisors referred to by the Complainant were promoted while she was on maternity leave. These were internal promotions in the area of pudding production, pudding labelling/slicing and manufacturing.
The witness confirmed that the Complainant was not notified of these new supervisory roles that were available for filling during her maternity leave. He advised that she was not qualified for the roles. He confirmed that the Complainant would not have bene considered for these internal promotions and was not contacted. He explained the three different supervisory roles were as named above and a warehouse supervisor. His evidence was that the role of pudding supervisor was given to one of the Complainant’s co-workers. This person was identified early on as having potential and should be promoted. He described the three new supervisors as going well above and beyond in their performance for the company.
He submitted that the Complainant’s role was 90%-95% planning. This role was made redundant on the restructure.
He explained that as far as he could ascertain the course the Complainant had an issue with was an Excel course, but it was a very basic Excel course and it would not have been suitable for the Complainant to go on with the level of knowledge she had of Excel. He advised that it was intended that the Complainant would get other training at a higher level on Excel.
As regards the Complainant’s allegation that she wasn’t involved in daily meetings, his evidence was that the Complainant was at a 10.00am meeting with him whenever he was on site and while he wasn’t involved at the 12.00 noon meetings, he didn’t believe they were invite only.
He advised that he had no issue with the Complainant’s pregnancy or going on maternity leave the transition was managed well. Her position was divided up between her co-workers and her role was not replaced for the duration of her maternity leave.
He confirmed that she was the only person in that facility whose role was made redundant following the restructure.
He explained there was a company policy to inform staff on maternity leave or sick leave of new positions or promotions that could be applied for. He felt it was not relevant to inform her.
The general manager confirmed that there was thirty seven to forty staff now in this facility and that they had taken on around five general operative roles.
In summary the Respondent’s case was that it was a genuine redundancy and not pregnancy related. It came about because of the restructuring process and the Respondent refutes any allegation of discrimination. It submitted that there was no evidence put forward of discrimination and relied on the requirements set out in Section 85 (a) (1) of the Employment Equality Act 2004. It submitted that the Complainant had not adequately set out her claim and failed to set out a prima facia case of discrimination.
Findings and Conclusions:
I am conscious that the claim before me is a discrimination case not a Redundancy Payment Act, 1967 case.
Council Directive 2002/73/EC of 23 September 2002 amending Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards to access to employment, vocational training and promotion, and working conditions states:
“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 be entitled during her absence.".
Section 6(2A) of the Employment Equality Act, 1998 as amended recognises that discrimination on the gender ground shall be taken to occur where “on a ground related to her pregnancy or maternity leave, the woman employee is treated in a manner which is contrary to any statutory requirement less favourably than another employee is, has been or would be treated”. The statutory requirement with which the respondent must comply is section 26 of the Maternity Protection Act,1994 which states that an employee is entitled to return to work
“under terms and conditions not less favourable than those that would have been applicable to the employee if she had not been so absent from work”
Section 85A of the Acts sets out the burden of proof which applies to claims of discrimination. It requires the Complainant to establish, in the first instance, facts upon which she can rely in asserting the she suffered discriminatory treatment. Where the complainant demonstrates that such a prima facie case has been established, the onus then shifts to the Respondent to rebut the inference of discrimination raised.
I find that the evidence submitted at the hearing indicates that the Complainant did not return to the same position following a period of protected leave namely maternity leave. The Complainant was given an option of redundancy or the alternative role of a general operative.
I note that the Complainant was the only person made redundant in the streamlining process and on the basis of same I find the Complainant has raised an inference of discrimination in the sense that her gender and her maternity leave are within the range of possible reasons why the Respondent chose not to return her to her exact same role or a role with the same level of responsibility within the organisation following her return from maternity leave.
The Respondent’s case is that I accept that the Complainant was given a suitable equivalent alternative in circumstances where I find that her role had altered following her return from maternity leave. The Respondent rebuts the inference of discrimination by explaining that it was the streamlining or restructuring which drove the changes in her factory and her role. It submitted that the changes to her role were unconnected to the fact of her having taken protected leave.
I accept that the Respondent is entitled to streamline its business. Nothing remains static for ever. However, the changes in the Respondents plant and organisation were decided while the Complainant was on maternity leave. The Complainant had no opportunity while on maternity leave to be part of the decision-making process involved in same. The Complainant was not advised of new roles being created within the plant or given an opportunity to apply for same.
The Respondent accepted that it employed three other male employees for the role of supervisor while the Complainant was on maternity leave. It argued that these were internal promotions and the Complainant was not eligible for these roles given her previous experience.
The Respondent explained how the Complainant was not replaced while on maternity leave and how her role was divided up and added to the roles of colleagues.
Whether the Complainant was eligible or not for these new supervisory roles is not a matter for me to decide. The fact is that she was not involved in the streamlining process and when her maternity leave came to an end, she was presented with a new organisational structure as a fait accompli.
The efforts to meet and discuss matters with the Complainant happened after the changes had been implemented and appointments made.
I saw no effort on the Respondent’s part to retain the Complainant as a supervisor role.
When the Complainant was about to return to the workplace following her maternity leave she was offered an alternative role but not at the level she was working at. She was offered a general operative role on a significantly reduced salary with a six-month probationary period. In that role she would have to report to a newly appointed male supervisors in what was effectively a role reversal situation.
Therefore, I do not find the role to which she returned to be an equivalent role following her period of protected leave.
I find that the Respondent has failed to rebut the inference of discrimination in terms of her dismissal.
I find the respondent failed to return her 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 be entitled during her absence."
I find this failure to be evidence of discrimination on grounds of gender contrary to the provisions of the Employment Equality Acts.
I did not identify sufficient evidence to substantiate the complaint of discrimination in relation to the provision of training.
The Complainant identified discrimination on family status grounds on her WRC form but confined her submission to the effects of having been on maternity leave when the changes to her role occurred. She did not make out a case of discrimination on family status grounds.
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.
I have decided not to anonymise the parties as the evidence contained in this complaint as required following Sheehan -v- Director of the Equality Tribunal 2012 223 JR.
The EU directive requires sanctions for breach of the principle of Equal Treatment and especially where a Pregnancy issue is involved to be “effective, dissuasive and proportionate.”.
The Labour Court in Lee t/a Peking House v Fox EED036 gave guidance that an award had to have regard to the
“effects which flowed from the discrimination which occurred. This includes not only the financial loss suffered by the complainant arising from the discrimination but also the distress and indignity which she suffered in consequence thereof”.
Bearing in mind the full context of this case, the following factors influenced my consideration of the quantum of an award. The Complaint worked in the plant since 2005 and was promoted a number of times to her final position of supervisor. She appears to have a good working relationship with her former managers and was employed by them after her dismissal.
For the Respondent a company which had a turnover of €40m to unilaterally demote the Complainant to the factory floor with a large reduction in salary and a six-month probationary period on her return from maternity leave was extremely hurtful to the Complainant. She was so stressed by what was being proposed she was unable to engage with the Respondent for 4 weeks.
Following her dismissal, the Complainant was out of work for 4 months and secured employment with her former managers. She now has a 2.5-hour daily commute to her new employment. In addition, due to her longer commute her childcare costs have increased by €100.00 per week.
Accordingly, having reflected on all the issues involved and in accordance with Section 82 of the Employment Equality Act,1998 I order the Respondent to pay to the Complainant the sum of €45,000 being one and a half year’s salary as compensation for the breach and infringement of a statutory right namely pregnancy related discrimination regarding the termination of her employment. This award It is not related to any issues of renumeration or salary.
This award is not related to the statutory redundancy payment already paid to the Complainant.
Dated: 14th May 2020
Workplace Relations Commission Adjudication Officer: Marguerite Buckley
Discrimination. Failure to provide an equivalent position on return from maternity leave.