Complainant

Respondent

Parties

Melissa  Blunnie

TTM Healthcare Ltd.

Representatives

Self

MP Guinness BL instructed by  Holmes O'Malley Sexton Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00045863-001

27/08/2021

The Complainant commenced her employment with the Respondent on 26 June 2015.

She works 24 hours a week and is paid €307.57 gross weekly.

The Complainant referred her claim to the Director General of the WRC on 27 August 2021 alleging that she has been discriminated against by the Respondent on the ground of her family status.

The Respondent rejects the claim.

The Complainant submits as follows.

Submission in the WRC complaint form

In her complaint form, the Complainant alleged that the Respondent discriminated against her on the ground of her family status in not promoting her. The most recent date of the alleged discrimination was stated as 21 April 2021.

The Complainant submitted in her form that she joined the Respondent in June 2015 on a two day per week contract (Friday – Saturday) as an On-Call Coordinator. The Complainant regularly worked additional days across different teams in the Respondent company.

The Complainant submitted that a few months after she commenced her employment, some of her colleagues began to book training courses for candidates who wished to join the Respondent and this evolved into the Training Department of the Respondent. A manager of the Training Department was hired; one member of staff was working with him. This person was asked to move to another department after a few months. The Complainant was asked and agreed to fill in until a replacement was found. The Complainant worked on the team for about 2-3 months until a new team member was found. Around the time the Complainant was working on the team, she was asked by the HR about taking on a full-time open role in the team. The Complainant was not interested, and she told HR that she would not be interested in working with her Manager as she found him difficult to work with and she believed he micromanaged her. The Complainant submitted that she spent more time explaining to her Manager what she was doing than she was able to spend doing her work, which became very frustrating and stressful. The Complainant submitted that she trained the new team member, and she was then assigned to work on another team. She was re-assigned back to the training team 2-3 months later to fill in again when the new person left until another full-time staff member was found. The Complainant submitted that during this period, the Manager’s attitude towards her became more positive and their working relationship improved.

The Complainant submitted that when the new team member started, she again trained her in the role and worked alongside her until she was fully proficient in her role. The Complainant submitted that this person confided in her and told her about the difficulties she had working with the Manager.

The Complainant submitted that she still worked regularly on the team providing support and, from 2019 she regularly worked there three days a week.

The Complainant submitted that around May 2019, her colleague asked for a reduced working week (3 days). The Complainant suggested that she would cover her five days a week role and the colleague could cover the Complainant’s three days. This was refused by the Manager.

The Complainant submitted that when the other staff member left her employment, the Manager informally advised the Complainant that she should apply for the full-time open role. However, there would be no “support” person on the team. The Complainant would be required to do eight days’ work (her own three days and five days open role). The Complainant said that she declined to interview as she knew that it would not be possible to do the work required in the time allocated. The role was advertised openly and a new starter, a Sales Coordinator was hired. The Complainant remained working on the team helping the Sales Coordinator to get up to speed in her role. The Complainant remained on the team consistently on a part-time basis. The Complainant submitted that her job title was Training Coordinator. Although, their job titles were different, they both worked equally on sales and admin duties.

The Complainant submitted that it became clear that an additional part-time team member was required for the training team and, in December 2019 the Manager informed the Complainant that he had received the go ahead to officially hire a part-time member for three days a week and he told the Complainant to send on her CV if she was interested. The Complainant submitted that, at this stage she was still contracted to the on-call team and “on loan” to the training team.

The Complainant submitted that she was successful and joined the team in January 2020. Her pay on the on-call team was €12 per hour on a weekday and €16 per hour on a weekend. The Complainant submitted that at the interview stage she was informed by the Senior HR Business Partner that, given the length of her service, she would be given a pay increase to €12.50 per hour. While it was an increase of the weekday hourly rate, it was a weekly decrease in the salary. When the Complainant raised it, the Respondent agreed to keep her salary as it had been for the past 4.5 years.

The Complainant submitted that, before she joined the team, the team had one target and they all worked together to reach it. When the Complainant joined the team, the Manager gave the Complainant and the Sales Coordinator individual targets and a sale would no longer be a team sale, it would be assigned to either of them as an individual sale toward their individual target. The rules and processes around what determined who the sale should be assigned to were unclear to both. This caused them both to question each other’s sales and the atmosphere became increasingly tense and the Complainant and the Sales Coordinator started to find it difficult to work together.  The Complainant submitted that she and the Sales Coordinator had an open conversation about the matter and it turned out that the Manager was telling them both different things and did not provide clarity. The Manager adjusted the rules in order to have the sales assigned to the Sales Coordinator.

The Complainant submitted that in April 2020 she saw on Workplace (a social media site for the workplace) that the Manager had put up a post congratulating the Sales Coordinator on having landed a client sale worth €1,000. The Complainant realised that it was her sale that was changed to the Sales Coordinator’s name when the Complainant was out of office. The Complainant submitted that she sent the Manager a WhatsApp message asking why this had happened. He did not reply to the Complainant but instead messaged the Sales Coordinator accidentally sending the message to the entire training team group. In this message he said “Melissa’s issue is the [named] sale. I solve the issue just put it under me if it’s okay. It is still a sale for the team as I said for her. The credit will go to you anyways. She is gas.” The Sales Coordinator replied: “Is that’s seriously the problem! Tell her she can sort it all so”. The Complainant then informed them that they were messaging in the group chat and that everyone could see it. The Manager replied: “Guys I’m on a call”. The sale was later re-assigned to the Complainant’s name.

The Complainant submitted that she brought the matter to HR as she felt that she was treated unfairly. After a few discussions with HR, clearer procedures were put in place and the team began to work well together again.

The Complainant submitted that when she informed the Manager of her pregnancy, he told her that she would need to use annual leave for her maternity appointments. When the Complainant confirmed with HR that this was not the case, the Manager told her to book her appointments on her days off.

The Complainant submitted that 2-3 months prior to her maternity leave in December 2020, the Manager told her that he wanted to try to have the Sales Coordinator focus solely on sales and the Complainant on admin duties to see how it would work. The Complainant agreed. The Complainant trained her maternity cover. She went on maternity leave in December 2020. The Complainant was in touch with the Manager and the Sales Coordinator on a regular basis including joining occasional MS Teams calls.

On 20 April 2021, the Manager asked if she would join a call to celebrate the Sales Coordinator’s birthday. The Complainant joined the call and was in touch with the Manager afterwards via WhatsApp.

On 21 April 2021, the Complainant saw a post from the Manager on Workplace congratulating the Sales Coordinator on her promotion to Senior Sales Coordinator. The Complainant submitted that she was not informed of an opportunity for promotion on the team and she felt that it was unfair.

The Complainant submitted that she spoke to HR and requested to move to another team as she felt that this was the final straw for her on the team. HR suggested that she had an informal discussion with the Manager; the Complainant agreed. The informal conversation took place on 7 May 2021. The Complainant took notes of this conversation which she then emailed to the Manager to confirm. The Complainant submitted that the Manager spoke about the new website for about 15 minutes. He then said that the Complainant “might have seen on Workplace that [the Sales Coordinator] was promoted”. The Complainant confirmed this. He went on to say that there would be no change to the Complainant’s structure. The Complainant asked him why and he said that “You are on maternity leave at the moment, there’s nothing major happening”.  He went on to say that when the Complainant is back from maternity leave, that they would look at a plan to get her to a promotion stage. He said that they could have discussed it then except that she was on maternity leave. The Complainant submitted that the promotion of a less experienced colleague (without children) while she was on maternity leave, failing to inform the Complainant of the opportunity for promotion available on the team and telling her that she was not considered for promotion because she was on maternity leave was in breach of the Employment Equality Acts. The Complainant asserted that she was discriminated against on the family status ground.

On 21 May 2021, the Complainant had an informal meeting with the Senior HR Business Partner and the Commercial Director (the Complainant’s Manager’s manager). During this conversation, they informed the Complainant that they would be happy to review her role with a view to making it a senior position. The Complainant submitted that she told them that she still wanted to move to another role as she no longer felt that she could work with her Manager. They assured her that they could look at other roles. The Commercial Director suggested options such as a role on a permanent recruitment desk or an admin role on the new Bespoke team. The Senior HR Business Partner said that they would review the Complainant’s current role first and then she would be free to apply for any open roles in the company. She assured the Complainant that all open roles would be advertised on Workplace and that HR would notify the Complainant of any open roles via email.

The Complainant submitted that she received one advertised role via email from HR, the role had a salary of €24,000. The Complainant submitted that she saw numerous new starters (at least 30 in 2021) in roles that she has not seen advertised.

The Complainant submitted that she agreed to the role review and met with her Manager and the Senior HR Business Partner on 21 June 2021. She was told that the roles available were the admin role the Complainant was already in or a sales role (at a senior level). The Complainant was offered a 3.5% increase (roughly €10 per week). This would be the Complainant’s first pay increase in 5.5 years in the company. The salary offered was €28,500 pro rata. The Complainant expressed her disappointment regarding the very small increase and was later offered €29,000 by the Commercial Director.

On 13 July 2021, the Complainant sent a formal complaint to the Senior HR Business Partner regarding her Manager’s unfair treatment. The Complainant was then contacted by the Finance Director of the Respondent who telephoned the Complainant on 26 July 2021 to discuss resolution options: a role on the Bespoke team or a role on the Compliance team with a salary of €29,000 pro rata which would be backdated to January 2021. The Complainant submitted that these roles were only available to her if she did not go ahead with the formal grievance. If she went ahead with the grievance, she would be working on the training team with her Manager. The Complainant submitted that she considered the options and went back to the Finance Director with her own proposed resolution options. She was happy with both roles and requested to speak to the managers of the teams to discuss further but this never happened.

The Complainant submitted that, as she was disappointed with a 3.5% pay increase after almost 6 years, she did some research and found that the national average salary for a senior administrator was roughly €33,000 – 39,000 per annum. The Complainant suggested a salary of €33,000 per annum pro rata. She requested that this would be backdated to January 2020, when she joined the training team. The Complainant asked for additional 20 days of annual leave  (pro rata 12 days) in lieu of the amount of time and stress spent on this situation since April. The Complainant submitted that she has been suffering mentally since the ordeal began and had to seek professional help with this. The Complainant felt that her maternity leave was taken from her and she was devasted that she would never get this time back with her child. The Complainant also asked for access to the Respondent’s Educational Support Program as she was commencing a psychology degree in September 2021. The Finance Director came back to the Complainant and said that the salary would not be increasing from €29,000 pro rata; that the Respondent would be happy to give the Complainant back any time she spent on calls/meetings in relation to this as annual leave; that the Complainant’s salary would be backdated to January 2020 and this would be paid as a once off educational support, a total of €1,750.

The Complainant submitted that the Finance Director mentioned sending her a confidentiality agreement but he did not elaborate. The Complainant asked the Finance Director and HR if there would be any consequences for her Manager for his actions and she was told that his matter would be dealt with privately but she would not be informed of the outcome.

The Complainant submitted that she had worked alongside the Manager since 2017 and this incident was not an isolated one. In 2018, a MAPA trainer was required. The Complainant expressed her interest in the training to her Manager but he told her that it would not suit her family circumstances as it involved overnight stays in a hotel and the Complainant had a young child at home. A colleague with no children from another team was trained instead. When the colleague subsequently went on maternity leave, the Manager told the Complainant that training her was “the biggest waste of 2 grand” and that he wouldn’t be making this mistake again. The Sales Coordinator was trained as a MAPA trainer in early 2021. The Complainant submitted that she was not informed of this opportunity.

Additional submissions of 20 June 2022, 30 June 2022, and 5 July 2022

On 20 June 2022, the Complainant furnished an additional written submission that reiterated her initial submission as outlined above. On 30 June 2022, the Complainant furnished supplementary evidence. Further correspondence  entitled “Outline of position in relation to complaints made” was received from the Complainant on 5 July 2022. All additional information contained in this correspondence is summarised below. 

20th September 2020 – the Complainant agreed to focus solely on admin duties. The Complainant submitted that it was agreed that this arrangement would be reviewed upon her return from maternity leave. An email thread between the Complainant and her Manager was exhibited.

It is the Complainant’s case that she was asked to focus on admin in a competitive, sales driven environment, and her Manager stated in conversation on 13 May 2021 that “promotions are done on sales”.

It is the Complainant’s case that her Manager asked her to take an admin role which (unknown to her at the time) would put her at a massive disadvantage for promotion. Despite the Complainant hitting her targets and KPIs, as confirmed by her Manager on 13 May 2021, she was not considered for promotion, because she was admin and promotions were done on sales.

Extract from conversation notes 13 May 2021:

“I discussed a pay rise with you (PT), seeing as my colleague [the Sales Coordinator] has been given a % increase in her pay, I would be entitled to the same given that my length of service to the company is three times longer and I am far more experienced. You PT said that I wasn’t in a sales role so our roles were different. You told me that pay rises are based on hitting targets and they’re “done on sales”.

The Complainant submitted that the Manager’s emails show that there was no bonus in the admin role for reaching targets.

It is the Complainant’s case that her length of service with the company by April 2021 was 5 years and 10 months in total, 3.3 times the Sales Coordinator’s length of service in the company which by April 2021 was 1 year and 9 months.

Contrary to the Respondent’s Talent Review policy, as an employee with over 9 months service in the company, (7.7 times over), at a high level of performance (evidenced by WhatsApp messages between the Complainant and her Manager outlining a daily sales target of €2,000 and her achievement of same), the Complainant submitted that her potential was not recognised or rewarded.

TTM’s Talent Review Policy regarding Vacancies and Promotions states that:

“It is TTM’s policies to recognise and reward the potential of each employee who has over 9 month’s service with the company and to encourage personal development and career progression. Internal applications will always be encouraged where there are appropriate vacancies within the company. However it is recognised the importance of recruiting from external sources to benefit from new skills, ideas and experience. These decisions will be built based on entire employment experience”.

It is the Complainant’s case that despite her superior length of service, experience, skills and performance, she was overlooked and not informed of a promotional opportunity while her less experienced colleague was promoted to a senior level while the Complainant was on maternity leave.   

The Complainant submitted that the Workplace post clearly stated that it was a promotion:

“Massive congratulations to [the Sales Coordinator] on her promotion to Senior Sales Co-Ordinator in the training department”, and

“I am also delighted to say that [the Sales Coordinator] is now a MAPA and Manual Handling Instructor.”

The Complainant submitted that she was not made aware of an opportunity for these training courses, having previously expressed her interest in becoming a MAPA instructor since 2018.

It is the Complainant’s case that the Respondent’s failure to inform her of the training opportunities available on the team and the training of her colleague while she was on maternity leave is in breach of the Employment Equality Act, 1998.

Further, it is the Complainant’s case that as stated in the Workplace post, a promotion did occur, therefore a promotional opportunity had arisen on the team. Further, the Employment Equality Act, 1998 specifies that “an employer shall not discriminate against an employee in relation to (Section 8, subsection 1d) - “promotion or re-grading.” Therefore, the Act also covers what the Respondent claims to be “an individual banding change only”.

It is the Complainant’s case that her Manager deliberately omitted to offer or afford her access to opportunities for promotion in circumstances in which another eligible and qualified person is offered or afforded such access.

Further, when the Complainant met with her Manager on 13 May 2021, she asked the Manager if there was a possibility of a pay increase in her role in line with her superior length of service, level of experience and skills. The Manager asked her to email him to justify the reasons why she felt she deserved a pay rise and he confirmed that the Sales Coordinator was not asked to nor did she request a promotion/pay rise but that he “offered it to her.”

Extract from notes of conversation with the Manager on 13 May:

“I (MB) discussed a pay rise with you (PT), seeing as my colleague has been given a % increase in her pay, I would be entitled to the same given that my length of service to the company is three times longer and I am far more experienced”.

“You (PT) then said to email you to justify the reasons why I (MB) felt I deserved a pay rise. I asked you if [the Sales Coordinator] had emailed you asking for a promotion/pay rise and you said “No, I offered it to her”.

It is the Complainant’s case that the Manager also did not in those circumstances offer or afford her access in the same way to those opportunities, in breach of subsection 1b of the Act.

Further, the Respondent states that “[The Sales Coordinator’s] performance was reviewed and, based on her performance and KPIs, a change of title was given to her, but her role basically stayed the same. There were no changes to her job specification and arising out of her performance review”.

The Complainant submitted that in her role review with her Manager and the Senior HR Business Partner on 21 June 2021, the senior sales role discussed was stated to be “mainly a new business role” which is vastly different to her sales role prior to maternity leave and also vastly different to the senior sales role secured by the Complainant’s colleague (their roles were the same prior to the Complainant going on leave). As stated, the Complainant’s colleague’s role “basically stayed the same” with “no changes to her job specification”.

The Complainant submitted that on 28 May 2021, she met with HR and the Commercial Director. During this conversation, the Commercial Director asked her, “what does success look like for you?” to which she replied, “No longer working on the training team” and stated again that she was looking to move to another team in the business. Nonetheless, it was requested that her current role on the training team was reviewed. The Complainant agreed.

21 June 2020 – the Complainant met with the Senior HR Business Partner and her Manager to discuss senior positions on the training team. Three positions were discussed, a senior sales position, a senior admin position and a senior blended role, comprising both sales and admin.

23 June 2020 – the Complainant received an email from her Manager outlining the duties, salary and bonus scheme for each role. The administration role had no bonus scheme for achieving targets, the sales role had a bonus scheme of an additional €1,800 euro per year (if 100% of targets were achieved, pay out over 90%). The Manager’s email outlines how this would be mainly a “new business role”, which is vastly different to the Complainant’s previous sales role on the training team and for which she had not received training. The Complainant expressed interest in the blended role as this had been her role up to the end of September 2020, however the Manager informed her that this role would only be available if she could commit to 4-5 days per week.

Further, the Respondent stated that there was no such change in the Sales Coordinator’s duties or role upon being offered a promotion.

It is the Complainant’s case that from January 2020 to late September 2020, that her role was blended and covered both sales and admin duties. However, her Manager informed her on 23 June 2020 via email that a blended role would only be available if she could commit to increasing her contract from 3 days to 4/5 days. No objective justification for the required increased hours was provided. Further, there was subsequently no 4/5 day role advertised or filled on the team, indicating that there was not a legitimate requirement or aim for the Respondent to demand increased working hours for this role.

It is the Complainant’s case that this demand to increase working hours to remain in a blended role is unjustified and amounts to indirect discrimination on family status grounds.

It is the Complainant’s case that the requirement to increase her hours as a condition of employment, significantly impacts more persons of her family status than persons of no family status, whereas the mother of two young children, it is not possible for the Complainant to commit to increased hours at work.

13 July 2020 – the Complainant emailed HR and the Commercial Director with a formal grievance complaint against her Manager.

16 July 2020 – The Complainant received an email from the Finance Director and agreed to take a call from him. The Complainant submitted that she spoke with the Finance Director on 19 July 2021. The Finance Director discussed resolution options in the form of two roles available, one on the Bespoke team and one on the Compliance team. He outlined the duties and salaries for the roles. He discussed the formal grievance and appeals procedure, advising that the investigation and appeal could take 8-12 weeks each to complete, giving an estimated timeframe of roughly 4-6 months in total. The Finance Director also discussed resolution options in the form of two roles available, one on the Bespoke team and one on the Compliance team. He outlined the duties and salaries (increase to €29,000 pro rata) for the roles. Additionally, he offered the salary to be backdated to 1 January 2021. These roles were only available if the Complainant agreed not to proceed with the formal grievance. When queried by the Complainant via email on 19 July 2021, this stance was confirmed on the phone by the Finance Director on 20th July 2021:

 “these are just options that may resolve the grievance that you raised. If at any point you feel that none of them are satisfactory, you 100% have the option to continue with the grievance”.

The Complainant sent a telephone message to the Finance Director which stated:

“I have thought about everything we discussed and I will be proceeding with the formal grievance. I really appreciate the time and effort you put into looking at these resolution options. Unfortunately, I don’t feel that the proposed resolution will put this right”.

The Complainant submitted that since she proceeded with the formal grievance, she did not receive the role or salary of €29,000 or backdated pay as offered, indicating that the resolution options proposed were absolutely offered on the condition that she withdrew her formal grievance.

23 August 2021 – the Complainant received an email from Graphite HRM, informing her that they had been employed by the Respondent to investigate her formal grievance with the Manager.

24 August 2021 – the Complainant submitted her complaint to the WRC.

27 August 2021 – the Complainant met with Graphite HRM via a MS Teams call and discussed the grounds of her complaint.

13 September 2021 – the Complainant received an email from the Respondent’s solicitor in relation to her subject data access request and her submission to the WRC.

The Complainant submitted that she was due back to work from maternity leave in September 2021 and based on this planned return to work date, she had employed childcare three days per week. At the last minute, a few days before her scheduled return to work, HR called the Complainant and her leave was extended by 8 weeks to the end of October 2021. Given the difficult environment in which to secure childcare, the Complainant submitted that she had to keep her childcare employed for three days per week throughout the extended 8 weeks. Once again at the last minute, HR called her and again extended her leave, this time to 22 November 2021, again she had to keep her childcare employed during this time.

The Complainant submitted that she mailed HR enquiring about her return to work and role upon return to work. She received an email on 17 November 2021 confirming that she would be joining the compliance team on 22 November 2021.

5 November 2021 – the Complainant received an email from Graphite HRM stating that the investigation found “the complaint against [the Manager] is not upheld”.

9 November 2021 – the Complainant contacted HR to begin the appeal process.

22 November 2021 – the Complainant returned from maternity leave to a role with the Compliance department.

25 November 2021 – the Complainant met with another TTM employee via MS Teams for her appeal hearing.

14 December 2021 – the Complainant received an email from the Appeals Officer with the appeal outcome attached which stated that she had “provided insufficient evidence to support [her] complaints” and that the original decision by Graphite HRM had been upheld.

The Complainant submitted that she continues to work for the Respondent in a business support/admin role, not a sales role, so there is no bonus scheme for achieving targets. This role change has pushed her back in her career progression due to starting at the bottom on the compliance team as she had limited previous experience on this team.

Summary of direct evidence and cross-examination of the Complainant

In relation to the matter of time limits, the Complainant said that the investigation process of her grievance and the meetings with HR and the management impeded the time frame and delayed the referral of her claim to the WRC.

In cross-examination, the Complainant disagreed that the Sales Coordinator’s role change was not a promotional opportunity. She agreed that her Manager offered her a review after the maternity leave. However, she said that had she been reviewed while on maternity leave, she would have been more experienced than the Sales Coordinator at the time. She said that the timing of the review is the issue as she was told that the manager could not review her performance while she was on maternity leave, therefore, she was treated differently. She said that she did not suggest that the Respondent should not have reviewed anyone while she was on maternity leave but the Respondent should have called her and reviewed her performance while on maternity leave. She said that she was invited to a birthday party, so she could have been called to a performance review as well.

The Complainant accepted that she raised a grievance and an external investigator was appointed. While she noted that the investigator was paid by the Respondent, she confirmed that she did not suggest that they were biased. She agreed that she appealed  the outcome of the investigation.

The Complainant did not dispute that a number of roles were offered to her and that she sent an email with her own proposals.

The Complainant did not dispute that employees’ titles/job titles are changed in the organisation without an actual promotion but to reflect their progress. She did not dispute the details provided by the Respondent in the spreadsheet documenting such changes.

In her concluding remarks, the Complainant said that the Commercial Director was influenced by false information given by her Manager. Her Manager said that nothing was happening because she was on maternity leave. He also told her to book her appointments on her days off.

The Respondent submits as follows.

Preliminary Objection

A number of the matters raised by the Complainant within the complaint form are out of time as the Complainant has six months within which to lodge a claim of discrimination under the legislation. As she lodged her complaint form on 24 August 2021, only matters from 25 February 2021 to the 24 August 2021 are matters that can be considered by the Adjudication Officer.

History

The Complainant is a training coordinator within the Respondent’s business. The Respondent is a healthcare recruitment agency offering jobs for healthcare professionals in Ireland. The Complainant joined the Respondent initially in June 2015 on a two day per week contract. The Complainant worked across various teams. She provided extra support and covered annual leave and sick leave for the training team. She did not officially join the training team until January 2020 on a three day per week contract.

A Sales Coordinator joined the training team in July 2019 on a full-time contract.

On 13 January 2020 the Complainant’s salary increased to what is considered to be a senior rate salary of €27,545 (pro rata). In or around September 2020 the Complainant was asked by her Manager to focus solely on administrative duties prior to going on maternity leave. The Sales Coordinator continued to focus on sales. The Complainant agreed to this, and it was also agreed that the arrangement would be reviewed upon her return from maternity leave. The Complainant went on maternity leave on 4 December 2020.

The Alleged Discrimination

The Complainant alleges that, while on maternity leave, she was not informed of a “promotion opportunity” which she would have applied for. She became aware of this opportunity on 21 April 2021, when her Manager announced the successful promotion of her colleague. She alleges that when she raised this issue with her Manager, he informed her that there would be no change to the structure of the team. When she asked him why this was, he replied, “you’re on maternity leave at the moment, there’s nothing major happening.”

It is denied that any promotional opportunity became available while the Complainant was on maternity leave. Promotional opportunities are advertised on Workplace. An announcement was posted by the Manager on Workday indicating that the Sales Coordinator’s role was to become Senior Sales coordinator. That change in title was to reflect the Sales Coordinator’s individual progress in her role. This was an individual banding change only and not a promotional opportunity. The Sales Coordinator’s performance was reviewed and, based on her performance and KPIs, a change of title was given to her, but her role basically stayed the same. There were no changes to her job specification and arising out of her performance review, her salary increased to €27,200 which is less than the Complainant’s salary.

It is commonplace within the Respondent company to review employees’ performance and change their job role/title to reflect that performance. These changes are not “promotion opportunities” and therefore are not advertised. A list of employees (including women both before and after maternity leave and those with children) whose job titles have been amended in this way in the last year was exhibited at the adjudication hearing.

It is the Respondent’s case that when the Complainant returned from maternity leave her role would also have been reviewed in the same way. This was discussed with the Complainant at a meeting with the Senior HR Business Partner and the Commercial Director on 21 May 2021. At that meeting the Complainant indicated that she wanted to move to a different role as she felt she could no longer work with her Manager. Notwithstanding that, it was agreed that there would be a review of her role and the Complainant met with the Manager and the Senior HR Business Partner on 21 June 2021. The Complainant was offered a senior sales role, but she was unhappy with the level of salary increase being offered which was €28,500 (on a pro rata basis which is in excess of the Sales Coordinator secured after her review). The Complainant expressed her dissatisfaction and was offered €29,000 as a final position. The Complainant was not happy with the increase to her salary.

The Complainant lodged a formal complaint (a copy was exhibited at the hearing). The Financial Director reached out to the Complainant and a number of alternative roles were suggested for her. It is strenuously denied that they were offered on the condition she withdrew her grievance. The Respondent supported the Complainant at all times in relation to investigating her grievance. The positions that were offered were an administration position with the title of Senior Training Administrator. The second position offered was a Senior Sales Coordinator position, and the third role discussed was a blended sales/administrative role, but that role would only be available on a 4-5 days per week basis. The Complainant was offered an increase of 3.5% on her salary which would be pro rata based on the hours she committed to on a weekly basis. A copy of the relevant email exchange was exhibited at the hearing.

By email dated 28 July 2021, the Complainant emailed the Financial Director setting out the main points that she wished to discuss with him the following day. She confirmed that both the bespoke and compliance roles that had been discussed sounded ideal to her in terms of duties and the flexibility afforded. However, she added in the following demands:

·        A salary of €33,000 pro rata (in line with national average salary for senior administrator €33,000 – €39,000). I am requesting that this is backdated to January 2020 when I joined the training team.

·        An additional (once off) 20 days’ annual leave in lieu of the enormous amount of stress caused and time taken by the active discrimination.

·        Access to the educational support program – I am commencing a level 8 degree in psychology in September 2021. I have taken a lot of time to consider this resolution and I hope you will agree that it is fair.

By email dated 29 July 2021 the Financial Director responded thanking her for her email and proposals. He stated that unfortunately the Respondent was not in a position to offer any of the proposals as resolutions to her grievance. In relation to annual leave days, he included a suggestion which they believed was fair and reflects the time spent on that issue while she was on leave. Taking each of the points separately, he responded as follows:

·        I understand that you have had a previous discussion with [the Commercial Director] regarding salary, where it was brought to your attention that the proposed increase in salary is at the top end of what TTM offer for your current role.

·        I understand that you have had a previous discussion with [the Senior HR Business Partner] regarding education support. TTM are committed to providing external education support to employees for courses that are directly linked to their role, or a role that they could hold in  the future. If you feel that there are courses that you would like to progress that are linked to your role, please contact [the Senior HR Business Partner] and she can discuss further with you.

·        Regarding annual leave, I fully appreciate that this situation has caused a level of stress. However, we are not in a position to offer a further once off 20 days, which would equate to approximately seven weeks, based on your current three-day working week. I am in a position however to add back any days that you spent on calls and meetings in relation to this issue. If this is acceptable to you, we can discuss the time incurred and have them added back. If additional time off is required, you should discuss this with either your line manager or [the Senior HR Business Partner]. Please note that in your email below you mention the “act of discrimination”. It would be remiss of me not to mention that at this point it is an alleged act until either the grievance is reviewed independently and adjudicated on, or it is resolved. I hope you appreciate me making reference to this statement, but it is important we have noted it in our communications with each other.

A copy of this email exchange was exhibited at the hearing.

Following that email exchange, the Complainant sent a text message to the Financial Director confirming that she would be proceeding with her grievance. She stated “I really appreciate the time and effort you put into looking at resolution options. Unfortunately, I don’t feel that the proposed resolution will put this right”.

The Financial Director replied stating, “Hi Melissa, thanks for the text. This is absolutely fine, and I said to you on numerous occasions, that is your right to do that. I am happy that you have been able to weigh everything up and make a decision either way, so thanks for that. [Senior HR Business Partner] is off this week but back next week. I am going to send her a mail now and she will touch base with you next week. Thanks again”

A copy of those text messages was exhibited at the hearing.

On 13 July 2021, the Complainant submitted a formal grievance via email to the Senior HR Business Partner, alleging that she had been discriminated against.

On 20 August 2021 the company appointed Graphite HRM to conduct an impartial investigation into the complaint. A full investigation took place and it ultimately concluded in September 2021. The investigation concluded that the allegations of discrimination by the Manager, against the Complainant, were not upheld. A copy of the investigation report was exhibited at the adjudication hearing.

The Complainant appealed that decision and the appeal took place on 25 November 2021. The outcome of the appeal hearing was that the appeal was not upheld (a copy of the appeal documentation was exhibited at the hearing).

The Complainant was paid throughout the grievance process and for a period of extended leave after maternity leave. She returned to a different role under different supervision as per her request. The Respondent facilitated a change to the Complainants working hours and days to support her when coming back to work.

In relation to the specific matters raised by the Complainant, the Respondent replies as follows.

On 31 March 2020 the Complainant states that she looked at Workplace and saw that the Manager had put up a post congratulating the Sales Coordinator on having landed client sales worth €1,000. It is submitted that this claim is out of time. Without prejudice to that, this was dealt with in the external investigation by Graphite HRM. While the allegation was partly upheld following investigation, i.e., admittance of the messages, the investigation found the Complainant had failed to establish a link between this incident and the allegation of discrimination.

In June 2020 when the Complainant informed the Manager of her pregnancy, he informed her she would need to use annual leave for her maternity appointments. When she checked this with HR, she was informed that she did not have to do so. It is submitted that this complaint is also out of time. Without prejudice to that, this was the first time that a member of the Manager’s team was pregnant and he was unaware of the maternity leave provisions. The Complainant’s leave entitlements were explained to her by HR.

On 20 September 2020, two and a half months prior to the Complainant’s maternity leave, the Manager asked the Complainant to focus solely on admin duties. He wanted to try having the Sales Coordinator focus solely on sales to see how it worked, and she agreed. It was agreed that this would be reviewed upon her return from maternity leave. The Complainant asserts that she was asked to focus on sales in a competitive sales driven environment which put her at a “massive (sic) disadvantage for promotion”. The Complainant agreed to this as it suited her and it is submitted that it is unclear how this could be an act of discrimination but, in any event, this complaint is out of time.

On 20 April 2021, the Complainant saw the post from the Manager on Workplace congratulating the Sales Coordinator on her promotion to Senior Sales Coordinator. The Complainant states she was not informed of an “opportunity for promotion” on the team and she felt this was extremely unfair. It is submitted that there was not an opportunity for promotion on the team and that the change in the title was as a result of a review of her performance in the normal course. The Sales Coordinator’s “promotion” meant that she was still at a salary scale lower than the Complainant. The investigation found that the change to the Sales Coordinator’s role was reflective of title and performance only. The investigation was not supplied with any evidence of differing job specification and the complaint was not upheld. The investigation found that while the Complainant learned of the change via Workday, this was an individual banding change only. It is denied that the Respondent discriminated against the Complainant in reviewing the Sales Coordinator’s performance and increasing her salary to a level below what the Complainant was earning. It is further submitted that the Complainant was not entitled to an automatic increase in salary just because her colleague’s performance had been reviewed at that time. As the Manager indicated at the investigation, he had considered implementing this earlier but Covid-19 interruptions to the workplace had intervened.

The Complainant had a conversation with the Manager on Thursday 13 May 2021. The Manager stated that she was on maternity leave in order to reassure her that, as the Sales Coordinator’s performance had been reviewed the Complainant’s would also be reviewed but, as she was on maternity leave, there were no changes at that time. A decision to increase an employee’s salary was not one that the Manager could unilaterally take. It would have to be discussed and supported in the business by the Manager’s manager and HR.

On 27 April 2021, the Complainant did speak with the Senior HR Business Partner and requested to move to another team. The Complainant was facilitated with a further meeting on 28 May 2021 to support her and it was agreed that her current role would be reviewed.

The Complainant met with the Manager and the Senior HR Business Partner to discuss senior positions on the training team on 21 June 2021. Separately, the Complainant met with the Financial Director. During the course of such conversations, three positions were discussed. The roles being discussed were as a result of the Complainant seeking a different role on her return from maternity leave. It is accepted that the blended role was a role that needed to be covered by someone working between four and five days a week, and that the contract that the Complainant has with the Respondent is for a three-day week.

The reason given by the Complainant for not accepting any of the proposed roles discussed with the Financial Director was that the Respondent would not accede to her excessive demands regarding her salary, an additional 20 days’ annual leave, and an educational bonus. It is not accepted that the blended role could be covered in a three-day week role.

The Manager offered the Complainant opportunities to support her progression across different avenues (emails exhibited at the hearing).

In July 2020, it is accepted that the Complainant lodged a formal grievance against the Manager. It is not accepted that the discussion around resolutions options in the form of the roles available were subject to the Complainant agreeing not to proceed with the formal grievance. This is supported by the text message sent to the Complainant when she indicated that she intended to progress with her formal grievance against the Manager. The Complainant was at all times fully supported in that decision. It is denied that the Complainant was discriminated against in this or any other way.

The Complainant’s salary was reviewed and backdated in August 2022. A further 10% increase was applied in September 2022. The Complainant’s base salary is now €32,000 while the Sales Coordinator’s is €31,500.

Legal Submissions

The Employment Equality Acts prohibit discrimination. In general terms, discrimination is taken to have occurred where a person is treated less favourably than another person is (or would be) treated by reason of any of the discriminatory grounds outlined at Section 6 of the Act.

Section 85A of the Equality Acts sets out the burden of proof and provides that where facts are established from which it may be presumed that prohibited conduct or discrimination has occurred, it is for the Respondent in the case to prove the contrary. Accordingly, for an allegation of discrimination to be upheld a Complainant must, in the first instance, show prima facie evidence of the discrimination. Once a prima facie case is established the burden of proof then shifts to the Respondent to show that discrimination did not take place.

The test for shifting the burden of proof was considered in an employment context in Mitchell v Southern Health Board 2001 ELR201 which established that the Complainant is obliged to prove the primary facts upon which he or she relies in seeking to raise an inference of discrimination. It is only if this initial burden is discharged that the burden of proving that there was no infringement of the principal of equal treatment passes to the Respondent. If the Complainant does not discharge the initial probate of burden which she bears, her case cannot succeed.

In its findings in the case of Tesco Ireland Limited v Grzegorz Kowalski EDA1812 the Labour Court cited the case of Cork City Council v McCarthy EDA0821 as follows:

“The type or range of facts which may be relied upon by a Complainant may vary significantly from case to case. The Legal Authority provides that the burden shifts where a Complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged or proved it remains for the Court to decide if the inference of presumption contended for can properly be drawn from those facts. “

It is not in dispute that the Sales Coordinator was reviewed while the Complainant was on maternity leave. It is submitted that it is not sufficient for the Complainant to simply assert that because she has a family status and the Sales Coordinator does not there was discrimination. There was not a “promotion opportunity” but a recognition of the Sales Coordinator’s performance in her role and she was given a salary increase to a level that was still below that of the Complainant’s salary.

The Complainant accepts that she agreed in September 2020 to concentrate on administrative duties and agreed that that this would be reviewed on her return from maternity leave. It was again made clear to the Complainant when she raised the Sales Coordinator’s new title as an issue, that her role would be reviewed on her return from maternity leave. This was commonplace within the Respondent as is evidenced by the list exhibited at the hearing.

The Complainant’s role was reviewed but she refused the opportunities offered to her because the Respondent would not agree to her demands. It is submitted that the Complainant attempted to use the alleged discriminatory act in order to get a large increase in salary, an additional 20 days holiday and an educational support for a course not linked to her role. It is submitted that the Complainant has failed to establish facts from which an inference of discrimination can be presumed. In those circumstances she has failed to shift the burden of proof.

Without prejudice to that, a full independent investigation was carried out and the grievance was not upheld. The Complainant was offered an appeal process and again the grievance was not upheld. The Respondent has facilitated the Complainant with a change in position, hours and days.

It is denied that the Complainant has been discriminated against.

In her concluding remarks, Ms Guinness BL said that this is a grievance related to a longstanding difficult relationship the Complainant has with the Sales Coordinator. The Complainant’s family status has nothing to do with the matter. It was submitted that it would be unsustainable to expect the Respondent not to review other people’s performance while the Complainant was on maternity leave. If the Respondent reviewed the Complainant’s performance while she was on maternity leave, she would have a claim under the Act and regarding maternity protection.

Ms Guinness BL noted that the Complainant now raised the issue of additional annual leave which she said she was forced to take. The Respondent offered the Complainant additional leave to support her.

It was clarified that due to an administrative error, the Complainant’s salary has not been amended for a period. It has since been rectified.

Summary of direct evidence and cross-examination of the Senior HR Business Partner, Ms Slattery

The witness said that any open competitions are advertised externally and internally. This is different to any changes resulting from a review of performance.

Ms Slattery said that the Respondent would contact employees to invite them to social events, so they feel included.

Ms Slattery said that the Complainant requested 20 days of annual leave. She said that she reached out to the Complainant on 31 August 2021 discussing the extended leave. She then emailed the Complainant, and then confirmed the extended leave by email. She received no response from the Complainant. At no stage did the Complainant question the additional leave.

The Complainant did not want to come back to her team, so consultations took place regarding her return. Ms Slattery said that she discussed the Complainant’s role with her.

It was put to Ms Slattery that the Complainant inquired about her return to work on 6 October, 13 October and 17 October 2021. Ms Slattery agreed but said that the Complainant sought a new role, she did not return to her team and it was discussed with her.

Ms Slattery was asked if she asked or told the Complainant about the extended leave. She said that the Respondent was happy to give the Complainant additional leave. The Complainant did not express any concerns. It was additional leave to support her. Ms Slattery was surprised how this was not considered as support.

Ms Slattery conceded that the Complainant’s salary was to be reviewed. She said that it was an admin error, it was rectified and paid.

The Complainant commenced working for the Respondent in June 2015 and was an employee at the time of this adjudication. 

The Complainant referred her complaint to the Director General of the WRC on 27 August 2021 alleging that she was discriminated against by the Respondent on grounds of family status with regards to her promotion. In her subsequent submission of 5 July 2022, the Complainant raised the matter of indirect discrimination on family status ground.

It is necessary to clarify that the family status ground is the only discriminatory ground in respect of which I have jurisdiction to consider the alleged discrimination in the present case. I am satisfied that it was clear from both the initial complaint referral form and the written submissions that the claim of discrimination was confined exclusively to the family status ground.

In reaching my decision, I have considered all the submissions and evidence both written and oral presented to me.

Preliminary matter – time limit

The Respondent contended that a number of the matters raised by the Complainant within the complaint form are out of time.

The Complainant argued that the engagement with the management and the investigation process of her grievance impeded the referral of her claim to the Director General of the WRC.

Section 77 provides as follows:

(5)

(a) Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.

(b) On application by a complainant the Director General or Circuit Court, as the case may be, may, for reasonable cause, direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and where such a direction is given, this Part shall have effect accordingly.

(c) This subsection does not apply in relation to a claim not to be receiving remuneration in accordance with an equal remuneration term.

(6) Where a delay by a complainant in referring a case under this section is due to any misrepresentation by the respondent, subsection (5)(a) shall be construed as if the references to the date of occurrence of the discrimination or victimisation were references to the date on which the misrepresentation came to the complainant's notice.

(6A) For the purposes of this section—

(a) discrimination or victimisation occurs—

(i) if the act constituting it extends over a period, at the end of the period,

(ii) if it arises by virtue of a term in a contract, throughout the duration of the contract, and

(iii) if it arises by virtue of a provision which operated over a period, throughout the period,

(b) a deliberate omission by a person to do something occurs when a person decides not to do it, and

(c) a respondent is presumed, unless the contrary is shown, to decide not to do something when the respondent either—

(i) does an act inconsistent with doing it, or

(ii) the period expires during which the respondent might reasonably have been expected to do it.

In Ann Hurley v County Cork VEC EDA 1124 the Labour Court pointed out that subsection (5) and subsection (6A) of section 77 deal with different forms of continuing discrimination. Subsection (5) deals with situations where there are a series of separate acts or omissions which, while not forming part of regime, rule, practice or principle, are sufficiently connected so as to constitute a continuum. Therefore, in order to take into account acts of discrimination outside the time limit there must be a finding that a related act of discrimination occurred within the time limit. Under subsection (6A), an act will be regarded as extending over a period, and so treated as having been done at the end of that period, if an employer maintains and keeps in force a discriminatory regime, rule, practice or principle which has had a clear and adverse effect on the complainant, viz Barclays Bank plc v Kapur [1989] IRLR 387.

The approach of the Labour Court as outlined above was approved by McKechnie J in the Supreme Court case of County Louth VEC v Equality Tribunal [2016] IESC 40. Here the Judge stated, at par 23-25 of the Judgment: -

“23. At the outset it is important to understand that both ss. 77(5)(a) and (6A) are intended to capture quite different circumstances (County Cork VEC v Hurley EDA1124 (Labour Court, 26th July, 2011)). Subsection (6A) deals with situations where a single act occurs and where it continues to occur over a lengthy period, such as discrimination based on a regime, rule, practice or principle of an ongoing nature. A term in a contract is a good specific example of the provision’s more general meaning. In such a case the six month period initiating the process will only start to run when the offending regime or practice ceases; or, put another way, the discriminatory act will be regarded for limitation purposes as having occurred only when such basis has ceased to exist.

24. On the other hand, s. 77(5)(a) of the 1998 Act deals with a situation in which there are a series of separate acts or omissions on the part of, say, an employer, which, whilst not forming part of a regime, rule, practice or principle (“regime or practice”), are sufficiently connected so as to constitute a continuum of discrimination. In effect, this deals with a situation whereby there are separate manifestations of the same disposition to discriminate (Bolger, Bruton and Kimber, Employment Equality Law (Dublin, 2012) at para. 16–47). In such a case, once a complaint is made within six months from the date of the last act or omission, all conduct found to form part of the continuum will be regarded as having occurred within time.

25. At the level of principle, therefore, where such a regime or practice exists or where a sufficient linkage can be established between separate acts, it is possible to plead matters which have occurred on a date or dates far beyond the six month period. In theory, such could extend for several years prior to the date of complaint. Even if that should occur, however, provided that the circumstances intended to be covered by the subsections are established, all such incidents will be regarded as being within time and thus will be within the competence of the Equality Tribunal to investigate for redress purposes. ”

It is settled law that in order for alleged acts of discrimination to be considered by the Adjudication Officer as representing a continuum of discrimination it is necessary to establish that acts of discrimination have actually occurred within the cognisable period set down by the Acts for the making of a complaint.

The Complainant referred the within complaint to the Director General of the WRC on 27 August 2021. Therefore, the cognisable period is from 28 February 2021 to 27 August 2021.

Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination.  It requires the Complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to her.  If she succeeds in doing so, then, and only then, is it for the Respondent to prove the contrary. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the respondent.  In deciding on these complaints, therefore, I must first consider whether the existence of a prima facie case has been established by the Complainant. 

The Labour Court elaborated on the interpretation of Section 85A in the case of Melbury v Valpeters EDA 0917 where it held that Section 85A:

"…. provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts, which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”

In Margetts v Graham Anthony & Company Limited EDA038, the evidential burden which must be discharged by the Complainant before a prima facie case of discrimination can be said to have been established was further outlined by the Labour Court. The Labour Court stated as follows:

“The mere fact that the complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.”

Section 6(1) of the Employment Equality Acts provides that discrimination shall be taken to occur where “a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) …..”. 

Section 6(2)(h) of the Acts defines the family status ground as follows – (c) that one has family status and the other does not (in this Act referred to as “the family status ground”),

Family status” is defined in Section 2(1) of the Acts as follows:

“family status” means responsibility—

(a) as a parent or as a person in loco parentis in relation to a person who has not attained the age of 18 years, or

(b) as a parent or the resident primary carer in relation to a person of or over that age with a disability which is of such a nature as to give rise to the need for care or support on a continuing, regular or frequent basis,

and, for the purposes of paragraph (b), a primary carer is a resident primary carer in relation to a person with a disability if the primary carer resides with the person with the disability;

There was no dispute that the Complainant is a mother of two children and falls within the definition above. There was also no dispute that the nominated comparator, the Sales Coordinator does not have family status.

Section 8 of the Act in relevant parts provides:

8. Discrimination by employers etc.

(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 of subsection (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.

In her complaint form, the Complainant alleged that she was discriminated against on the family status ground in relation to promotion.  In the outline of her complaint, the Complainant described a number of matters that, she believed, were discriminatory. These included the following:

·        MAPA training - in 2018, a MAPA trainer was required. The Complainant expressed her interest in the training to her Manager but he told her that it would not suit her family circumstances as it involved overnight stays in a hotel and the Complainant had a young child at home. The Sales Coordinator was trained as a MAPA trainer in early 2021. The Complainant submitted that she was not informed of this opportunity.

·        The assignment of sales - in April 2020 the Complainant’s sale was assigned to the Sales Coordinator. This was rectified, and after a few discussions with HR, clearer procedures were put in place and the team began to work well together again.

·        Text messages - the Manager sent disparaging messages to the Sales Coordinator about the Complainant regarding the sale via WhatsApp (April 2020).

·        The Complainant submitted that when she informed the Manager of her pregnancy, he told her that she would need to use annual leave for her maternity appointments. When the Complainant confirmed with HR that this was not the case, the Manager told her to book her appointments on her days off (June 2020).

·        2-3 months prior to her maternity leave in December 2020, the Manager told the Complainant that he wanted to try to have the Sales Coordinator focus solely on sales and the Complainant on admin duties to see how it would work. The Complainant agreed (September 2020)

·        On 21 April 2021, the Complainant saw a post from the Manager on Workplace congratulating the Sales Coordinator on her promotion to Senior Sales Coordinator. The Complainant submitted that she was not informed of an opportunity for promotion on the team and she felt that it was unfair.

·        When the Complainant raised the matter of promotion with her Manger, she was told that “You are on maternity leave at the moment, there’s nothing major happening”. 

In her additional submission of 5 July 2022, the Complainant raised the matter of indirect discrimination.  It was the Complainant’s case that from January 2020 to late September 2020, her role was blended and covered both sales and admin duties. However, arising from the meeting on 21 June 2021, she was informed that a blended role would only be available if she committed to increasing her working days from 3 days to 4/5 days. The Complainant contended that no objective justification for the required increased hours was provided. Further, the Complainant asserted that there was subsequently no 4/5 day role advertised or filled on the team, indicating that there was not a legitimate requirement or aim for the Respondent to demand increased working hours for this role. It was the Complainant’s case that this demand to increase working hours to remain in a blended role is unjustified and amounts to indirect discrimination on family status grounds as it significantly impacts more persons of her family status than persons of no family status.

In relation to the alleged discrimination in relation to promotion, there was no dispute that a role of Senior Sales Coordinator was created in the Complainant’s department. There was no dispute that the Complainant was not made aware of such a role becoming available. There was also no dispute that the Complainant’s colleague, the Sales Coordinator who had no family status was appointed to the role. The Complainant asserted that the reason why she was not promoted but the Sales Coordinator was was due to her family status. The Complainant relied on the notes of the meeting of 13 May 2021 where her Manager referred to her maternity leave:

“You went on to say that there would be no change to my structure. I asked you why and you replied “You’re on maternity leave at the moment, there’s nothing major happening.”

I find that the Complainant established a prima facie case in this regard.

The Respondent rejected the claim and argued that there was no promotional opportunity but a change in title to reflect individual progress in the role and that the Complainant’s role would have been reviewed in a similar manner after her return from maternity leave.

It was not in dispute that the Senior Sales Coordinator’s role was not advertised and the Sales Coordinator’s duties and role were not changed following the change of her title. While her salary increased, it remained less than the Complainant’s salary.

It was not in dispute that the Respondent regularly changes its employees’ titles on the basis of their performance. The undisputed evidence shows that some 20 female employees had their titles/roles changed in the period from 1 February 2021 to the date of the hearing, including three instances of a title/role change that occurred after maternity leave, one before, and two female employees with children. It was undisputed that these changes were based on performance review and the new titles/roles were not advertised.

In normal circumstances, I would be willing to accept the Respondent’s assertion that, as the Complainant was on maternity leave, the Respondent was not in a position to conduct a performance review and consider a change of title/role on that basis at the time. However, I note that, following the matter being raised by the Complainant,  the Respondent engaged with the Complainant and a review of the Complainant’s role was offered to her and took place during her maternity leave. At a meeting on 21 June 2021, three roles within her existing team were offered to the Complainant that attracted an increased salary as compared to the Complainant’s pre-maternity role: Senior Training Administrator, Senior Sales Coordinator, and a blended Sales/Admin role. I note the Complainant’s assertion that the blended role was the role she had held until October 2020. The Complainant did not accept any of the proposed roles.

The Respondent asserted that the Sales Coordinator’s role remained unchanged, and that her title and salary changed to reflect her individual progress in the role. This does not appear to be the case in the Complainant’s review. At the meeting on 21 June 2021, the Complainant was offered three roles that were available in the department with different duties, KPIs and, in the case of the blended role, the requirement to work 4/5 days a week. It appears that the review was not that of her individual progress, unlike the Sales Coordinator’s but rather an attempt to find another role the Complainant could move to that attracted a higher salary.

In that regard, I find that the Complainant was treated less favourably that the Sales Coordinator was in terms of promotion.

Subsequent to the Complainant’s request to return to a different team following her maternity leave and to her raising a grievance against her Manager on 13 July 2021, two roles were offered to her, in the Bespoke Team and Compliance Team. With a view to resolving the Complainant’s grievance it was also proposed that the Respondent would backdate the Complainant’s salary to 1 January 2021.

While the Complainant accepted that either of these roles sounded “ideal”, she furnished her own proposal in terms of potential resolution: salary of €33,000 pro rata backdated to January 2020, an additional once-off 20 days of annual leave, and access to the Educational Support Program.  The Complainant’s proposal was not acceptable to the Respondent.

I do not accept the Respondent’s assertion that the above two roles were made available to the Complainant regardless of her decision in relation to the grievance against her Manager. The Finance Director’s email of 29 July 2021 states clearly that the proposals are “resolutions to your grievance”:

 “…when you have had more time to think the original proposal through and by then, you will be in a position to either accept one of the proposals that I have documented in a previous mail or decide to continue with the grievance.” (emphasis added).

The alternative roles were proposed to facilitate the Complainant’s move to another department and to resolve her grievance against her Manager. I  find that the Complainant did not adduce any evidence to support her claim that she was treated less favourably than a person who did not have a family status is, has been or would be regarding her request to a change of the department/team or the Respondent’s attempts to resolve her grievance.

In relation to the Complainant’s assertion that the Sales Coordinator was trained in early 2021 and the Complainant was not informed of this opportunity, I find that at the time (“early 2021”) the Complainant was on maternity leave. I note that during the meeting on 13 May 2021, the Complainant’s Manager (as per the Complainant’s notes) discussed the Complainant’s training following her return from maternity leave:

“You next mentioned having plans to have me (MB) do train the trainer course/s in September, you mentioned possibly HACCP but said you weren’t quite sure yet. I said that this is something I am interested in, having previously expressed my interest in becoming a MAPA trainer.”

It appears that the Respondent discussed the Complainant’s training opportunities with her and outlined its plans for the training following the Complainant’s return from maternity leave. I find, therefore that there was nothing put before me to suggest that the Complainant was treated less favourably regarding training opportunities within the cognisable period because of her family status.

It is settled law that in order for alleged acts of discrimination to be considered as representing a continuum of discrimination it is necessary to establish that acts of discrimination have actually occurred within the cognisable period set down by the Acts for the making of a complaint.  As I have found above that the Respondent discriminated against the Complainant on 21 June 2021, I will now consider matters pleaded that have occurred on dates beyond the six months.

In relation to the Complainant’s assertion that she was refused training in 2018 because it would not suit her family circumstances as it involved overnight stays in a hotel and the Complainant had a young child at home, there was nothing put before me to substantiate the Complainant’s claim.

In relation to the matter of the assignment of a sale in April 2020, I find that there was nothing put before me to substantiate the Complainant’s claim that the initial assignment of the sale in question to the Sales Coordinator was in any way linked to the Complainant’s family status. The Complainant’s own submission was that the rules around the assignment of sales were unclear and that this matter was resolved following some engagement with the Respondent.

With regard to the Complainant’s assertion that she was discriminated against on the ground of family status due to the text messages sent by her Manager via WhatsApp regarding the sale in April 2020, I find that there was no evidence put before me to suggest that the messages in question were in any way linked to the Complainant’s family status. I find that there was no evidence put before me to substantiate the Complainant’s claim.

Regarding the Complainant’s claim that she was discriminated against on the ground of family status when her Manager informed her that she would need to use annual leave for her maternity appointments, I find that it is well established that discrimination based on pregnancy comes within the remit of gender-based discrimination and not family status-based discrimination. The Complainant did not refer a claim alleging discrimination on the gender ground. I note that, at the time, the Complainant was a mother of one child and pregnant with her second child.  I find that, following an exchange of emails that took place between the Complainant and her Manager on 25 June 2020 between 9.38am and 10.47am, her Manager concluded that “it would be nice”  if the Complainant scheduled her appointments on a day off but if the appointments are arranged on her working day, she would be given time off to attend. I find that there was no evidence put before me to substantiate the Complainant’s claim that she was discriminated against on the ground of family status in that regard.

In relation to the Complainant’s assertion that 2-3 months prior to her maternity, the Manager told the Complainant that he wanted to try to have the Sales Coordinator focus solely on sales and the Complainant on admin, I find that the email exchange between the Complainant and her Manager shows that the matter was discussed with the Complainant on 17 September 2020. By email of 18 September 2020, the Complainant’s Manager outlined the proposal regarding the team changes and asked the Complainant to confirm that she was “happy enough to proceed”. He also asked the Complainant not to hesitate of she had any questions. The Complainant responded with some details regarding hours of work and saying that it “sounds good”. The Complainant confirmed at the hearing that she did agree to the change of her role. I, therefore, find that there was no evidence put before me to substantiate the Complainant’s claim that she was discriminated against on the ground of family status in that regard.

The Complainant further asserted that that she was subjected to indirect discrimination on the grounds of her family status when the Respondent offered her the blended role on the condition that she would be available to work 4/5 days a week was . The Complainant contended that no objective justification for the required increased hours was provided. Further, the Complainant asserted that there was subsequently no 4/5 day role advertised or filled on the team, indicating that there was not a legitimate requirement or aim for the Respondent to demand increased working hours for this role. The Complainant asserted that the requirement to increase her hours as a condition of employment, significantly impacts more persons of her family status than persons of no family status, whereas the mother of two young children, it is not possible for the Complainant to commit to increased hours at work.

For completeness, the Complainant, in her initial complaint form referred to discrimination but did not specifically refer to indirect discrimination. The Complainant raised the matter of indirect discrimination on the first day of the hearing on 5 July 2022. On the day, the Respondent requested an adjournment on the basis, inter alia, that the Complainant had not referred to indirect discrimination previously. The hearing was adjourned to allow the Respondent to address any matters that were raised at the hearing. The Respondent furnished its updated written submission on 27 January 2023. While the Respondent accepted that the blended role was a role that needed to be covered by someone working between four and five days a week, and that the contract that the Complainant has with the Respondent is for a three-day week, no further submission regarding indirect discrimination was received.

Indirect discrimination is defined as occurring where an apparently neutral provision puts a person who is a member of one of the nine groups at a particular disadvantage due to being a member of that group, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.

Indirect discrimination requires a claimant to demonstrate that an apparently neutral provision places them at a particular disadvantage to others. They must show that the provision has a detrimental effect on them on the ground advanced. They can demonstrate this quantitatively (by way of statistics) or qualitatively.

The Supreme Court in the case of Nathan v Bailey Gibson & Others [1996] ELR 7 set out the tests to be applied in considering cases of indirect discrimination. This was a case under the Employment Equality Act, 1977 concerning indirect discrimination on the grounds of sex and marital status. The Supreme Court stated the following principle which were followed by the High Court in the case of Conlon v University of Limerick [1999] ELR 10 where it was held that:

“In such a case the worker is not required, in the first instance, to prove a causal connection between the practice complained of and the sex of the complainant. It is sufficient for him or her to show that the practice complained of bears significantly more heavily on members of the complainant’s sex than on members of the other sex. At that stage the complainant has established a prima facie case of discrimination and the onus of proof shifts to the employer to show that the practice complained of is based on objectively verifiable factors which have no relation to the plaintiff’s sex.”

The Complainant contented that she was offered the blended role with higher salary on the basis that she would be required to work in a full-time position. The Complainant contends that she was unable to return to work on a full-time basis because of her childcare responsibilities. 　

I find that the Complainant has failed to adduce any evidence  from which I could conclude that, on the balance of probabilities, she was subjected to indirect discrimination on the ground of family status but rather has essentially relied upon supposition and assertion, unsupported by evidence, in support of her claim in this regard.

I declare this complaint to be partly well founded.

I declare that the Complainant was discriminated against on the family status ground. I require the Respondent to pay the Complainant €10,000 for the effects of discrimination.

I order the Respondent to review its promotion and performance evaluation process to ensure transparency and consistency.

I declare that the Complainant  has not established a prima facie case of indirect discrimination on the family status ground.

Equality – family status – indirect – direct discrimination