SECTION 83 (1), EMPLOYMENT EQUALITY ACTS, 1998 TO 2015
GINO'S ITALIAN ICE CREAM LIMITED
(REPRESENTED BY ESA CONSULTANTS)
- AND -
(REPRESENTED BY MR. LARS ASMUSSEN B.L., INSTRUCTED BY SEAN ORMONDE, SOLICITORS)
1.An Appeal of Adjudication Officer's Decision No. ADJ 00017730.
The Complainant went on maternity leave in April 2018, which was due to conclude on 30 September 2018. The Respondent hired a Ms. Luczak to replace her while she was on maternity leave.
In August 2018, the Complainant wrote to the Respondent regarding her return to work and she expressed an interest in working at management level when she returned. She was advised that an Area Manager would contact her.
When the Complainant visited the shop a few days later, the shop manager advised her that she would be leaving the employment and that Ms. Luczak would be promoted as her replacement.
The Complainant expressed her disappointment that she had not been given an opportunity to apply, which she attributed to the fact that she was on maternity leave.
In the course of subsequent communication, the Respondent referred to the Complainant’s ‘availability’, to which she replied to indicate that she was available on a full time basis, including weekends.
The Respondent states that Ms. Luczak was appointed on the basis of her managerial experience and that they had only sought clarity regarding the Complainant’s availability because of experience with other employees returning from maternity leave who had sought different work arrangements than had applied prior to the leave.
The Complainant resigned from the employment on 22 September 2018. She lodged a complaint under the Employment Equality Acts 1998-2015, ‘the Acts’, with the Workplace Relations Commission, ‘WRC’, alleging that she had been discriminated against on grounds of gender and family status.
The Adjudication Officer did not uphold the complaint and the Complainant appealed to this Court.
In the course of the Court hearing, the Complainant’s representative withdrew the complaint on the family status ground. The case heard is an appeal of the Decision in respect of the gender ground.
Both parties acknowledged that witness evidence was not required as there was not a dispute about the essential facts of the case.
Summary of Complainant’s arguments
This case is taken under s.77 of the Acts and concerns discrimination against the Complainant contrary to s.8(1),(d) and s.8(8) of the Acts in that she was discriminated against by virtue of not being given the opportunity to compete for a promotion due to the fact that she was on maternity leave.
The Respondent acknowledges that there is no dispute about the Complainant’s excellent work performance and potential for advancement. This had been recognised already when she had been promoted to Head Gelato maker in December 2016. Her pay had risen to €12 per hour by January 2018.
On 9 August 2018, the Complainant had notified the CEO of the Respondent of her intended return from maternity leave and of her interest in a managerial role.
A few days later the Complainant visited the shop and learned that the shop manager, Ms. Cameron, was leaving. As a result, she was hopeful of being contacted and being invited to apply for the position. However, on 17 August 2018, Ms. Cameron advised her that Ms. Luczak would be replacing her. The Complainant was shocked and disappointed to be denied the opportunity to apply to make a case for her appointment to the post. She should have, and would have, been advised of the vacancy and invited to apply had she not been on maternity leave.
Subsequently, the Complainant received contradictory information via Ms. Cameron, from Mr. David Shortall, Area Manager, to the effect that a final decision on the filling of the post had not been made but that Ms. Luczak was being trained in for the post. The Complainant was not, despite her expression of interest, invited to apply.
Mr. Shortall suggested a meeting in mid September but the Complainant was concerned that the post would be filled by then and asked that it be brought forward. There was an email exchange with Mr. Shortall but the meeting never took place.
The Complainant received an email from Ms. Luczak on 20 September 2018 enquiring about her return to work and, following correspondence, Ms. Luczak confirmed her belief that she would become the shop manager.
When the Complainant spoke to Mr. Shortall the next day, he again enquired if she would be returning to work on a full time basis, despite the Complainant having clarified this to him already. He also spoke of her potential to become ‘Head Gelato Maker’, a post that she occupied already.
The Complainant believes that the comments about part-time working are a significant reflection of the Respondent’s state of mind and the inaccurate and discriminatory view that, because she had a new child, she would be unable to take on the managerial role.
In subsequent correspondence, Mr. Shortall confirmed that Ms. Luczak would become manager but added that he wanted the Complainant to train as a manager.
The Complainant contends that she should have, and would have, been given the chance to apply for the vacant post except for the fact that she was on maternity leave.
In a subsequent phone call, Ms. Cameron said that it had been assumed that the Respondent would be working part-time.
When the Complainant, mistakenly, issued an Equal Status form to the Respondent, Mr. Shortall expressed surprise and reiterated the offer of managerial training.
The Complainant was directly discriminated against. Therefore, a Comparator is not required. The Complainant was treated less favourably based on a criterion that is necessarily linked to a characteristic that is indissociable from the discriminatory ground (Case C-79/99 Schorbus).As perNtoko v. Citibank (2004) ELR 116,once the Complainant has made aprima faciecase of discrimination, (as defined inDublin Corporation v. Gibney’s EE5/1996), the burden of proof shifts to the Respondent. Reference is made also toMinaguchi v Wineport Lakeshores Restaurantand toA Technology Company v. A Worker EDA0714.
In the seminal case ofDekker v. Stichting Vormingscentru voor Jonge Volwassen (VJV-Centrum) C177/88 (1990) EUECJ R177/88,the ECJ held that discrimination on grounds of pregnancy is direct discrimination and that where a woman is treated less favourably, due to pregnancy or maternity leave, than another employee, discrimination on gender grounds shall be taken to occur.
Both EU Directive 2002/73/EC and s.26 of the Maternity Protection Acts provide for a worker’s return to work following maternity leave to her previous job and on no less favourable terms.
The Court’s attention is drawn to the cases ofByrne v. Minister for DefenceandGrainne Campbell v. Bank of Ireland Private Banking DEC 2013-046.
Other relevant examples of case law are the cases ofDevereux v. Bausch and Lomb DEC-E2005-020andA Worker v. An Insurance Company DEC E2015-022.In particular, the attention of the Court is drawn to the Court’s own observations regarding the protections from the adverse treatment of pregnant women enshrined in European law in the case ofCroc’s Hair and Beauty v. Helen Ahern ADE/16/58.
With reference to theNtokocase, the Court is asked to fix compensation at the upper end of what is permissible in the Acts at €46,080.
Summary of Respondent arguments
The Decision of the Adjudication Officer is correct in law. No new evidence is provided to contradict it.
There is no obligation on the Respondent to promote an employee. Where it does so, the promotion is based on justifiable reasons such as experience and primary skills. The Respondent has a history that shows it does not act in a discriminatory fashion.
The Respondent guaranteed the Complainant’s right to return on the same terms as she left when commencing maternity leave. She was never told that she was returning to a lesser role nor was she denied future managerial opportunities that may arise since her pregnancy.
The Respondent’s experience in recent years is that 13 staff went on maternity leave and each one requested to adjust their terms upon return to balance work and family duties and all were accommodated, so it is not denied that the Complainant was asked if she wanted to return on different terms. What is denied is her claim that she was forced to return on different terms.
With regard to case law cited by the Complainant, the Respondent disputes the applicability of the cases concerned. In the ‘Grainne Campbell’case, the Complainant was demoted upon her return from maternity leave, which is not the situation in this case.
With regard to the case ofByrne v. Minister for Defence (2017) IEHC 453,the Adjudication Officer noted significant differences between the circumstances of that case and the instant case.
The Respondent had offered to provide training for the role as manager to the Complainant. Ms. Luczak has a strong managerial background, which made her the most suitable candidate at the time. By the time that the Complainant returned from maternity leave, Ms. Luczak had completed the management training programme.
The Respondent did not promote people to manager jobs until they had undergone training. In light of the comments of the Adjudication Officer, the Respondent had now formalised the training programme that had always been in place.
The Respondent had a policy of not promoting people who had spent any significant time in a shop to management positions in that shop. Therefore, even if the Complainant had not been on maternity leave, she would not have been considered for the vacancy in question.
The Respondent acknowledges that the Complainant is an excellent worker and would welcome her return to the company to undergo the training that is necessary to develop her as a manager. Her resignation was unnecessary. She never took the opportunity that was offered to her. The Respondent was surprised at the Complainant’s resignation.
The Respondent has a grievance procedure that was never utilised by the Complainant.
The applicable law
Employment Equality Acts 1998-2015
8.— (1) In relation to—
(a) access to employment,
(b) conditions of employment,
(c) training or experience for or in relation to employment,
(d) promotion or re-grading, or
(e) classification of posts,
an employer shall not discriminate against an employee or prospective employee and a provider of agency work shall not discriminate against an agency worker.
(8) Without prejudice to the generality ofsubsection (1), an employer shall be taken to discriminate against an employee in relation to promotion if, on any of the discriminatory grounds—
(a) the employer refuses or deliberately omits to offer or afford the employee access to opportunities for promotion in circumstances in which another eligible and qualified person is offered or afforded such access, or
(b) the employer does not in those circumstances offer or afford the employee access in the same way to those opportunities
Deliberation and Determination
Enquiries concerning this Determination should be addressed to Clodagh O'Reilly, Court Secretary.