Complainant

Respondent

Parties

Catalina Elena Oancea

Caireen Early Years Limited

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00068421-001

Not pursued

03/01/2025

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

CA-00068421-002

03/01/2025

The respondent operates a crèche in County Wicklow.  It has six rooms and currently has 13 employees.  The complainant is the mother of two children and she commenced working for the respondent as a childcare assistant on August 6th 2024.  She resigned on November 1st 2024 when her request for a day’s annual leave on November 8th was refused.  She asked for the day off to bring her child to an appointment in Tallaght Hospital at 10.00am on November 8th.

It is the complainant’s case that, by refusing to permit her to take the day of annual leave as she requested, the respondent discriminated against her on the family status ground.

In advance of the hearing on June 25th, the complainant sent a submission to the WRC in which she explained that she worked for the respondent for just under three months.  In her submission, she said that she worked for between 15 and 16 hours a week, averaging around three hours per day.

The complainant said that when she was recruited for the job, she informed her employer that she was in receipt of carer’s benefit, and that she is entitled to work up to 18.5 hours per week, without affecting her benefit. 

On November 1st 2024, one week in advance of the hospital appointment for her child, the complainant said that she asked if she could take a day’s annual leave to bring him to the appointment.  A document that she appended to her submission shows that she also applied using the company’s “BrightHR” system and that her request was declined.  The record on the system shows that the reason for declining was that the complainant had no annual leave left to take and that two members of staff were already off.  At the hearing, the complainant said that, when she requested the day off, she had 4.5 hours of annual leave remaining.

The complainant said that, in the discussion she had with the assistant manager on November 1st, she was told that she couldn’t take the day off.  The assistant manager no longer works in the crèche.  The complainant said that she was called in to speak to the manager and she told the manager that she was taking the day off.  She said that the manager told her that further action would be taken if she didn’t come to work on November 8th.  She said that she felt that she had no option but to resign with immediate effect, because she believed that her dismissal was imminent.  She said that she sent an email later that day confirming her resignation. 

On behalf of the complainant, Mr Shortall suggested that the company’s policy on annual leave is restrictive, as it expects people to apply for holidays months in advance.  He said that this in itself is a discriminatory policy, because it doesn’t take account of people who are caring for children.

Mr Shortall said that, in her correspondence to the company before she started in the job, the complainant informed the management that she was the carer for her children.  He said that it’s not credible to think that an employee would ask for a day’s holidays without giving a reason.

Even if the complainant couldn’t be permitted to take a day’s holidays, Mr Shortall said that she could have been permitted to take a day’s unpaid leave, or force majeure leave.  He said that the complainant should have been informed of her options in this regard.

In response to questions from me, the complainant said that it wasn’t possible to change the date or the time of the appointment for her child, because the appointments are arranged months in advance.  She said that you must accept the appointment that you’re given.  She said that it wasn’t possible for Mr Shortall to attend the appointment because her child would be anxious if she wasn’t there.  She said that she and Mr Shortall both need to attend the appointments.

On behalf of the respondent, the manager of the crèche said that the decision not to permit the complainant to take a day off on November 8th was based on staffing.  The crèche is subject to a regulatory requirement to have a certain ratio of staff to children.  Two people had previously been approved to take annual leave on November 8th and, if the complainant was also absent on that day, there wouldn’t have been an adequate number of childcare assistants in one of the rooms.

The manager said that neither she nor the assistant manager were informed that the complainant needed the day off to attend a medical appointment with her child.  She said that, if she had known the purpose of the day’s holidays, she could have made a different decision.

The registered provider said that unplanned absences put the crèche under pressure, and generally, staff are expected to book their holidays well in advance.  She said however, that if the crèche can facilitate an employee, they will do so.   On the day in question, November 8th 2024, two employees had booked the day off and it wasn’t possible to facilitate the complainant on the same day.

The registered provider said that the complainant provided no evidence to support her need for a day off to attend hospital with her child.  She said that, until this complaint was submitted to the WRC, the managers were unaware that the complainant needed the day off to bring her child to a hospital appointment.

The registered provider said that it is not the policy of the company to ask people why they want to take holidays.  She said that, if the complainant had notice of the hospital appointment for her child months in advance, she could have asked for the day off in advance and it would have been easier to facilitate her.

The Legal Framework

The legal framework prohibiting discrimination on nine specific grounds is set out at section 6(1) of the Employment Equality Act 1998 – 2015 (“the EE Act”): 

“…discrimination shall be taken to occur where –

(a) 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 sub-section (2), in this Act, referred to as the ‘discriminatory grounds’…”

The subject matter of this investigation is the complainant’s contention that she was discriminated against on the ground of her family status.  At subsection (2)(c) of the EE Act, “the family status ground” is listed as one of the nine discriminatory grounds.  At section 2, under the heading, “Interpretation,” family status is given two meanings:

(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[.]

The definition at subsection (a) above properly describes the complainant’s family status. 

The Equality Act 2004 inserts a new section, 85A, into the EE Act:

“85A – (1) Where in any proceedings, facts are established by or on behalf of a complainant, from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.”

The effect of this section is to place the burden of proof in the first instance on a complainant, to establish facts which, on an initial examination, lead to a presumption that discrimination has occurred.  Referred to as “prima facie” evidence, in the context of this adjudication hearing, the responsibility is on the complainant to show that, based on the primary facts, she was treated less favourably than a person with no children.

In its decision in Melbury Developments Limited v Arturs Valpeters[1], the Labour Court expanded on what is required to establish the initial proof that discrimination has occurred:

“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 speculations 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 proof fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”

The Primary Facts

At the hearing of this complaint, the following primary facts emerged:

1.      Before the complainant commenced in her job as a childcare assistant in August 2024, she sent a member of staff a message to inform them that she was limited to working 18 hours a week or two full days, so that there would be no risk to her carer’s allowance.  She had therefore informed her employer that she was in receipt of a carer’s allowance, although it is not apparent from the message who she is caring for.

2.      At the hearing of this complaint, the complainant said that she got notice of the appointment for her child months in advance, and that it couldn’t be changed.  Despite this notice, she asked for a day off one week before the appointment.

3.      By way of explanation regarding why she couldn’t have the day off, the assistant manager of the crèche told the complainant that she had no annual leave left, which was incorrect.  She also told her that two other people were off on November 8th and that she couldn’t be off on the same day.

4.      The manager of the crèche said that she was unaware that the complainant needed the day off to attend a hospital appointment with her child.  The service provider said that the first indication they had that the complainant needed the day off for her child’s hospital appointment was when they were notified that this complaint had been submitted to the WRC.

5.      The document submitted by the complainant as evidence of her child’s appointment is a screenshot of a text message from “Swift queue” in the hospital.  The date on the message is November 7th.  The complainant said that she asked for the day off on November 1st, six days before this text message was sent.  It is apparent therefore, that this screenshot was not given to the manager as evidence of the appointment.  No other appointment confirmation letter was submitted by the complainant.

6.      The evidence of the manager was that the crèche is subject to certain staff/child ratios and that it is not possible to facilitate holidays at short notice.  She said however, that if she had known that the complainant needed to attend a hospital appointment with her child, she could have facilitated her, by moving people around or by filling in herself. 

As set out by the Labour Court in its decision in Valpeters, to establish that discrimination has occurred, I must find that, in respect of how she was treated when her request for a day’s annual leave was refused, “there was evidence of some weight from which it could be concluded” that the complainant was treated less favourably because she is the parent of a child.

Findings

There was disagreement at the hearing about whether the managers in the crèche knew that the complainant needed a day off on November 8th 2024 to take her child to a hospital appointment.  Although it is apparent that she didn’t produce a letter from the hospital to show that she had an appointment, I have decided to accept her evidence that she asked for the day off for the reason she stated.

Section 6(1) of the EE Act provides that, to establish that discrimination has occurred, the treatment of the person making the complaint must be determined to be less favourable compared to another person who is not in the same protected category.  In the case of this complainant, the comparable person is someone who is not the parent of a child:

For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances, discrimination shall be taken to occur where –

(a) 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) (in this Act referred to as the "discriminatory grounds") which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

Subsection (b) is not relevant to the complaint under consideration.

The complainant has not shown that, when her request for a day off was refused, another person was treated more favourably and was permitted to take the day off.  She said that most of the employees in the crèche are younger than her and haven’t got children, but she didn’t say that any of the employees with no children were allowed to take time off at a week’s notice.

It is my view that, in a business such as a crèche or a childcare setting, with 13 employees, and with a constant requirement for more staff, the planning of annual leave must be done as much in advance as possible.  While Mr Shortall argued that the requirement to give as much notice as possible discriminates against people with children because they can’t take holidays at short notice, the complainant herself said that she knew months in advance about the appointment and she could have asked for the day off with plenty of notice.

We know that the objective of the Organisation of Working Time Act is to ensure that employees get adequate rest and relaxation and holidays are not generally for the purpose of medical appointments or to bring children to medical appointments.  Although the complainant had enough holidays remaining, this time should have been used for the purpose for which it is intended and, if she had informed her employer when she knew about the hospital appointment, arrangements could have been made for her to take the day off for that purpose.

I am entirely satisfied that the decision of the managers not to agree to the complainant’s request for a day off on November 8th 2024 was not related to the fact that she needed to bring her child to a hospital appointment, but was due to the short notice and the fact that two people were already on a day off.

In Graham Anthony & Company Limited v Margetts[2], the Labour Court expanded on the potential burden which must be discharged by a complainant before a prima facie case of discrimination can be said to have been established:

“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.”

It is not sufficient for the complainant to simply claim that she was refused a day off because she is the mother of a child.  There must be “other facts” that demonstrate that, compared to person without a child, she was treated less favourably.  I am satisfied that it was reasonable for the respondent to refuse the complainant’s request for the day off, and, by refusing her, I am satisfied that no other person was treated more favourably.

Conclusion

Having examined the primary facts set out at the hearing by the complainant, it is my view that, in line with the authority of the Labour Court, the complainant has not shown that, on the balance of probabilities, she was discriminated against because she is the parent of a child.  For this reason, the burden of proving the absence of discrimination does not shift to the respondent.

As I have concluded that the complainant has not established the primary facts which show that she was discriminated against on the ground of family status, I have decided that this complaint is not well founded.

Discrimination, family status