Complainant

Respondent

Anonymised Parties

A Marketing Manager

A Drinks Retail Company

Representatives

Mr. C. McGowan, BL  instructed by Mr Aaron Mckenna, Aaron McKenna Solicitors

Ms. M. Fay, BL , instructed by Cian Beecher Arthur Cox LLP

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00062923-001

19/04/2024

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

CA-00062923-003

19/04/2024

The Complainant was employed in the Respondent company from the 21 June 2018 until she resigned her employment on the 15 March 2024.  The Complainant was employed as a Premium Spirits Marketing Manager.  The Complainant alleged that she was not notified in writing of changes to her terms of employment and that she was discriminated against on the grounds of gender. 

The Respondent denied the allegations and stated that the Complainant was not discriminated against. 

CA-00062923-001

The Complainant submitted that in demoting the Complainant on her return from maternity leave, the Respondent breached clause 3 and 21 of the terms and conditions of employment as set out in the contract between the parties, dated 21 June 2018 and in contravention of the Terms of Employment and Information Act, 1994. 

The Complainant submitted that she was employed as a Premium Spirts Marketing Manager and a referenced the related job specification appended to her submission.

The Complainant submitted the following:

·        That in line with her duties to the Respondent, she sent an email on the 27 November 2023, confirming that she would be returning from maternity leave within six weeks.  She also attended the Christmas party on the 15 December.  She sent emails on the 2, 15 and 18 January to her Line Manager, hereinafter referred to as Manager 1, about the company laptop, returning to work and setting up meetings with the person who had been hired as her maternity cover (hereinafter referred to as Employee 1).  She did not receive any replies, save for a request to schedule a call for 19 January, with her return-to-work date being 22 January.

·        On the 19 January the Complainant had a call with Manager 1, who informed the Complainant that she was moving to the role of Portfolio Department Lead, Employee 1 to remain in the Complainant’s substantive role as modified.  When questioned on the reason for what the Complainant alleged was a demotion, Manager 1 informed the Complainant that she would be “bored after six months” and that she needed a change.

·        The Complainant returned from maternity leave of approximately one year and 21 days duration and when she returned, she was demoted to Portfolio Department Lead.  Her new position was communicated to the wider team. 

·        The Complainant messaged Manager 1 via Microsoft Teams on the 22 January, seeking the job specification for the Portfolio Team Lead.

·        The Complainant also messaged Manager 6 via Microsoft Teams to request that she refrain from informing the team that she (the Complainant) was joining them.

·        The Respondent failed and neglected to consult with the Complainant prior to the demotion.  The Complainant’s participation, input and approval were not sought by the employer.  The Complainant received a verbal overview of the position to which she was being demoted.  The Respondent did not provide any objectively justifiable reason for the demotion.

·        The terms and conditions of appointment dated 21 June 2018, expressly stated under clause 3, bearing the heading of job title that: “You are employed as a Premium Spirits Customer Marketing Manager and will initially report to the Premium Spirits Manager.  Your reporting line may change to reflect changes in the company’s business organisation in which event you will report to such other position in the company as may be notified to you from time to time.  You will also acknowledge that your key duties and responsibilities will also include those reasonably notified to you by the company from time to time.  You may be required to undertake alternative or additional duties from time to time, as the company may reasonably require.  The company reserves the right to change your area of work, specific responsibilities and/or reporting line, as the needs of the business require”.

·        Clause 21 of the Contract of Employment entitled Changes to Your Terms of Employment, states: "The company reserves the right to make reasonable changes to any of your terms of employment.  You will be notified in writing of any change as soon as possible and in any event within one month of the change”

·        The Complainant was demoted contrary to the Respondent’s own terms and conditions of employment, whereby, the Complainant was:

                           I.          Not provided with reasonable notification

                          II.          Was demoted without reasonable explanation

·        While the company reserved the right to change the area of work, specific responsibilities and/or reporting line, as the needs of the business require, the Complainant was never provided a clear reason to demote her from Premium Spirits Customer Marketing Manager to a Portfolio Department Lead

The Complainant further submitted that pursuant to section 26 (1) of the Maternity Protection Act, 1994, there is a general right to return to work on the expiry of protected leave, and notice of section 26 (1) states:

“(1) Subject to this Part, on the expiry of a period during which an employee was absent from work while on protective leave, the employee shall be entitled to return to work —

(a) with the employer with whom she was working immediately before the start of that period or, where during the employee's absence from work there was a change of ownership of the undertaking in which she (or he) was employed immediately before her (or his) absence, with the owner (in this Act referred to as “the successor”) of the undertaking at the expiry of the period of absence,

(b) in the job which the employee held immediately before the start of that period, and

(c) under the contract of employment under which the employee was employed immediately before the start of that period, or, where a change of ownership such as is referred to in paragraph (a) has occurred, under a contract of employment with the successor which is identical to the contract under which the employee was employed immediately before the start of that period, [and (in either case) under terms or conditions –

(i) not less favourable than those that would have been applicable to the employee and

(ii) that incorporate any improvement to the terms or conditions of employment which the employee would have been entitled, if she (or he) had not been so absent from work.”

The Complainant submitted that in direct contravention of the aforementioned act, she returned to work and was demoted immediately from Premium Spirits Customer Marketing Manager to Portfolio Department Lead.

The Complainant submitted that Employee 1 was hired as maternity cover for the Complainant and that Employee 1 was remaining in situ despite the Complainant returning to work.  The Complainant further submitted that where there was a change in the terms and conditions of employment for a woman returning from maternity leave, there must be an objectively justifiable reason for the change and that the Complainant was never given any objectively justifiable reason for the change.  Further the Complainant submitted that objectively justifiable reasons for change typically arise from economic necessity or from a downturn in the business and noted that in the instant case, the letter from the Respondent of the 24 October stated “having regard to the business purpose of increased resources in the area of Premium Spirits (where the Complainant was a manager), with additional resource required to support the coffee side of the new business, it was clear that the full scope of work was too broad for one person.  As such, the business determined that rather than having one Marketing Manager with responsibility for Premium Spirits and Alcohol, the role would be split in two to permit a fairer distribution of work and greater life balance for employees”. 

The Complainant submitted that this correspondence clarified two points as follows:

1.      The Respondent did not have an objectively justifiable reason to demote the client as business was growing

2.      The Respondent needed an additional Marketing Manager in the area of Premium Spirits and Alcohol and demoting the Complainant to the position of Portfolio Department Lead was the diminution of her role due to her becoming a mother. 

The Complainant further submitted that the role was not split as suggested by the Respondent and noted that if the role was split, that would be two Premium Spirits Marketing Managers.  The Complainant submitted that a Portfolio Department Lead is not a management position and that a Portfolio Development Manager is a management position. 

The Complainant further noted that the experience required for the position of Portfolio Department Lead is lower than the requirements for a Premium Spirits Marketing Manager.

In conclusion, the Complainant submitted that in demoting the Complainant, the Respondent breached clause 3 and 21 of the terms and conditions of employment as set out in the contract between the parties, dated 21st June 2018 and in contravention of the Terms of Employment (information) Act, 1994. 

CA-00062923-003

Preliminary Issue – Amendment to the Complaint Form:

The Complainant submitted that she wished to amend CA00062923 to include family status as an additional ground for discrimination contrary to the Employment Equality Act. 

The Complainant also sought to amend the complaint form to include a complaint of penalisation in circumstances where the Complainant was penalised by her employer for exercising her entitlement to parental leave and as a result, on her return to work, the Complainant is seeking adjudication by the Workplace Commission under Section 18 of the Parental Leave Act.  The Complainant submitted that the factual matrix as set out in the complaint form, had not been changed and that a WRC complaint form is not a statutory form. 

The Complainant relied on the case of Conor Williamson V David Stone and Carol Stone trading as Ashton Dog Pound and Warden Service ADJ 00033234, herein after referred to as the Williamson case and noted that when filing and lodging the complaint form, the Complainant selected the Criminal Justice Act, 2011, as amended from the drop-down menu.  At that hearing of the matter, the Counsel for the Complainant applied to amend the complaint form on the grounds that the WRC complaint form was not a statutory form and should be amended to reflect the correct legislation within which the Complainant was to advance his cause was the Protected Disclosure Act, 2014.  In that case, it was submitted that the scope of both legislative acts was similar, save for one key provision; both acts had different definitions of the term “penalisation”, and the correct definition of penalisation in that case was encapsulated in the 2014 Act.  The Complainant noted that Counsel for the Complainant in that case had relied up the case of County Louth VEC V Equality Tribunal [2009] IEHC 370, where Mr. Justice McGovern had stated “I accept the submission on behalf of the Respondent that the form EE1 was only intended to set out, in broad outline, the nature of the complaint.  If it is permissible in court proceedings to amend pleadings where the justice of the case requires it, then a fortiori, it should be permissible to amend a claim as set out in a form such as the EE1, so long as the general nature of the complaint (in this case discrimination on the grounds of sexual orientation), remains the same.  What is at issue here is the furnishing of further and better particulars, although, it must be said, in the context of an expanded period of time ….”.  “Of course, it is necessary that insofar as the nature of the claim is expanded, the Respondent in the claim must be given a reasonable opportunity to deal with these complaints and the procedures adopted by the Equality Officer must be fair and reasonable and in compliance with the principles of natural and constitutional justice”.  “It is important to emphasise that the hearing before the Equality Tribunal is not a hearing in a court of law, with all the attendant formalities that would exist in such a forum”. 

The Complainant submitted that the Adjudicator in the Williamson case noted that the complaint was lodged under the Criminal Justice Act 2011, and it appeared, prima facie, that it was being advanced under the Protected Disclosure Act of 2014.  The Adjudicator concluded that she was satisfied that the general nature of the complaint remained the same and that the correction was administrative in nature.  Further, the Adjudicator found the justice of the case required the amendment. 

The Complainant submitted that the decision in the County Louth VEC V Equality Tribunal case was followed by the Labour Court in the 2015 decision Travel Lodge Management Limited V Sylvia Wach EDA 1511, where it was stated inter alia: “the ratio of that case appears to be that the procedures adopted by statutory tribunals in relation to the amendment of non-statutory forms used in the initiation of claims should not be more stringent than those that apply in the ordinary court, that is in line with the generally extended principles that statutory tribunals, such as this court, should operate with a minimum degree of procedural formality consistent with the requirements of natural justice”. 

The Complainant noted that the Labour Court further added “It could cogently be argued that in keeping with the decision in County Louth VEC V Equality Tribunal, and by application of the principle of equivalence, the court should not adopt a more stringent stance in relation to the substitution of parties than is available in the High Court pursuant to that rule”. 

The Complainant further noted the decision of Mr. Justice Charlton in the High Court case of Galway/Mayo Institute of Technology V Employment Appeals Tribunal (2007) IEHC 210, where he held: “It follows from the foregoing that a judicial or quasi-judicial tribunal is not entitled to invoke a statutory remedy which no one has sought and in respect of which no one is on notice.  For the purpose of fulfilling the requirements of natural justice, however, I would have thought that if any such tribunal does have jurisdiction to give a remedy under a particular act, then if this remedy  is sought in an originating document, for instance by ticking a box giving a choice of remedies, or if it is orally sought to in the course of a hearing, such a tribunal is entitled to make a choice in favour of it.  If that happens, parties have to be taken as being aware that in the event that a decision goes a particular way, the tribunal may look to a remedy claimed.  In that regard, I would regard a written claim or an oral assertion seeking a particular remedy as being sufficient for the due administration of constitutional justice, provided the tribunal has jurisdiction in respect of it.  If remedies are complex, and the tribunal has rules as to notice in the form of simple originating documents, then it should abide by it’s own procedures and consider the grant of an adjournment to a genuinely surprised party”. 

The Complainant further noted the Supreme Court decision in the case of Louth/Meath ETB V The Equality Tribunal (2016) IESC 40, where Mr. Justice McMenamin stated “It goes without saying, first, that the duty of the Equality Officer is both statutory and ultimately delimited by constitutional consideration.  As part of fair procedures, it is necessary that all parties be aware, in a timely way, of the case which they must meet.  Consequently, it would be wrong, were a situation to evolve in this investigation, where one or other of the parties was under a misapprehension of precisely the range of legitimate inquiry.  Second, it is hardly necessary to reiterate that it is not possible for any tribunal, upon which a particular jurisdiction has been conferred by statute, to extend or confine the boundaries of that jurisdiction by an erroneous determination of fact (see State (Attorney General) v. Durkan [1964] I.R. 279, approved in Killeen V DPP [1998] ILRM 1).  There may also be circumstances in which a tribunal, although holding jurisdiction to enter upon an investigation or inquiry, may render its decision a nullity by, for example, a denial of fair procedures.”

The Complainant submitted that in applying the aforementioned dicta, the WRC complaint form is not a statutory form, and the Complainant therefore was seeking to amend the form to include the grounds listed above. 

The Complainant appended copies of all documentation referred to in her submission

CA-00062923-003 The Substantive Complaint

In her complaint form, the Complainant submitted that she was employed by the Respondent on the 21st June 2018 as a Premium Spirits Customer Marketing Manager, that she received a contract and terms and conditions that expressly stated, “the following terms are issued in accordance with Terms of Employment (Information) Act, 1994 – 2001 and are the principal statement of employment”. 

She submitted that during the course of her employment, she was not subject to any disciplinary procedures and there were no issues in relation to her performance.  She submitted that she was on maternity leave from the 8 December 2022 to the 22 January 2024 and that there were no issues raised about her maternity as everything was approved.  She submitted that on the 27 November 2023, in line with her duty to the Respondent, she emailed HR and Manager 1 to confirm her return to work date was the 22 January 2024.  She further submitted that from early January, the weeks before she returned to work, she sent several emails to Manager 1 in relation to work etc.  She advised that these were not replied to until she followed up on the 18 January, at which time Manager 1 scheduled a call for Friday 19 January 2024, the last day before she returned to work on Monday 22 January 2024.

The Complainant submitted that on this call she was informed that she would be changing role from the Premium Spirits Customer Marketing Manager to Portfolio Department Lead.  She submitted that Employee 1, the lady hired as her maternity leave cover, was to remain in her substantive position.  The Complainant submitted that the change of position was a demotion.  She further submitted that on the call, Manager 1 told her that “ I had been in the role for too long and I would be bored within six months of my return and that I could do PS Marketing Manager (Premium Spirits Customer Marketing Manager) job with my eyes closed”. 

She further alleged that while on the call Manager 1 gave an overview of the position and the reporting structure.  She indicated that there was no mention of it being a management role and that it was clear from the call that she was being demoted, and that she flagged this concern with Manager 1.   The Complainant stated that Manager 1 gave an assurance about the matter, that he was nervous on the call, that he was over selling the role, and he proposed that they would meet on Monday.  He advised her that he would go through the job specification with her at that time.

The Complainant stated that the meeting on Monday never happened, that she messaged Manager 1 and he replied saying he was too busy to meet.  She stated that she asked for the job specification, but he never provided it.  She confirmed that she joined a call at 3pm that afternoon that involved Manager 1, Employee 1, and 2 other managers.  The Complainant stated that on the call Manager 1 informed those present that she was taking on a new role of Portfolio Department Lead and she advised that this was the first time she had heard the title.  She stated that Manager 1 had spoken to “the Coffee Team” that morning and asked them to contact her to get her up to speed on the coffee category.  At the meeting he outlined that the Premium Spirits Team would get more exposure to the wider marketing team as she was now part of their team.  Towards the end of the meeting, she stated that she asked Manager 1 if she could speak to him, but he told her he was too busy.  The Complainant stated that she advised Manager 1 that it was urgent and that he replied stating he could give her five minutes.  At that time the Complainant voiced her concerns about what was happening and her concerns that she, as yet, had no job description for the new role and that it had been announced to others that she was taking the position without ever asking her about taking up the position, or making a formal offer.  The Complainant stated that she saw the role as a demotion based on how he had described it to her on the phone on the previous Friday.  She stated that Manager 1 responded that it was a good role and that he was doing up the job specification as they spoke.  She further stated that he advised that nobody cared about titles or reporting lines and that her salary was not changing.  The Complainant stated that she advised Manager 1 that people do care about titles and reporting lines, and she indicated that she had been a Marketing Manager and reported to the Director level for the past ten years of her career. 

The Complainant stated that when the call was pending, she asked for the job description and Manager 1 said he would send it through.  She also asked for time on Tuesday (23rd January) to meet and discuss the role.  Again Manager 1 said he was too busy to meet on Tuesday.  The Complainant stated that around 5:20pm on Monday 22 January, the job specification for the position was sent to her and that this was the first time she saw the job description and 3 other managers were copied on the email.

The Complainant stated that on Tuesday 23rd January, Manager 6 emailed her to say she would inform her team that she (the Complainant) was joining that team.  The Complainant stated that she replied to say she had not accepted the role and that she was upset with how it was being handled.  She also stated that she had concerns that the role was a demotion, as the title, reporting structure, job overview and experience required for the role, were not equivalent to that of the PS Marketing role.  She stated that she was not given any fair or reasonable notice of the change in the role.  She stated that the job specification was only provided to her after it was announced to the company that she was changing roles, and she had not accepted the change in role. 

The Complainant stated that the position she was hired for was still in operation and the employee hired for her maternity cover, remained in position.  The Complainant noted that the experience required for the Premium Spirits Marketing Manager required previous Marketing Manager experience while the Portfolio Department Lead required three years in a marketing function.  She further noted that the Premium Spirits Marketing Manager reported to a Director level, while the Portfolio Department Lead was intended to report to Manager level.  She noted also that the Premium Spirits Marketing Manager had two direct reports, while the Portfolio Department Lead had no direct reports.  The Complainant stated that based on the above variance in criteria, it was abundantly clear that she was being demoted.  She stated that she believed that had she remained in her position as Premium Spirits Marketing Manager, and not taken maternity leave, that she would still be in the same position, that she would not have been told that she been in the role for too long and would be bored within six months of her return, and that she could do the PS Marketing Manager job with her eyes closed.  She stated that she believed that a male employee in a similar position would not have been treated the same, whether he availed of paternity leave or not.  She stated that she believed that she had not been treated equally.   The Complainant stated that there was no objectively justifiable reason for demotion and that she believed she had been discriminated against on the basis of her gender and for availing of maternity leave.  She believed she had been treated less favourable as a result of taking maternity leave.  The Complainant stated that there was no objectively justifiable reason for the demotion, discrimination and less favourable treatment. 

Complainant Submission

General Background

The Complainant submitted that she was employed by the Respondent from the 21 June 2018 to the 15 March 2024 when she resigned.  She submitted that on resigning she was informed her contract of employment would end on the 15 June 2022, she was on sick leave at that time and was not paid during this period and had returned the company property pertaining to her position (car, phone and laptop) on the 30 March 2024. 

The Complainant submitted that she was initially employed for the position of Premium Spirits Customer Marketing Manager and was paid a gross sum of €52,000 per annum and was provided with a car, a phone and a laptop.  She advised that the title was subsequently changed to Premium Spirits Marketing Manager.  The Complainant reported directly to Manager 1.  Her role was filled while the Complainant was on maternity leave by Employee 1.  The Complainant submitted that at the time of her resignation her basic salary was €68,113.55 excluding the bonuses and other contributions set out in an appendix to the submission. 

The Complainant submitted that the Respondent advertised for maternity cover for the Complainant’s position and that this was a contract for 12 months to cover the maternity leave and that this was expressly stated in the position as advertised.  The Complainant further submitted that at all material times, she adhered to the company’s maternity policy and that upon her return to employment after approximately one year and 21 days, she was demoted from Premium Spirits Customer Marketing Manager to a Portfolio Department Lead. 

The Complainant noted that the Respondent, was at all material times her employer.  The Complainant confirmed that her employment was terminated with confirmation of same in a letter from the Respondent on the 28 March 2024.  

. 

The Complainant submitted that she was discriminated by the Respondent on the grounds of gender.  She submitted that she departed on maternity leave with the position of Premium Spirits Marketing Manager and that she was demoted without warning to an ad hoc position on her return to work.  She further submitted that the days preceding her return to work were fraught with concerns that the Respondent had failed or neglected to reply to her emails, or scheduled time before she returned to work to bring her up to speed. 

The Complainant submitted that it was irrefutable that the Respondent’s change in attitude and treatment of her arose directly as a consequence of her maternity leave and further submitted that “but for the Complainant availing of maternity leave, she would not have been demoted”. 

The Law:

The Complainant relied upon section 4 (19) of Bolger, Bruton and Kimber, Employment Equality Law, 2nd Ed, 2022, which states:

“Section 85 of the Employment Equality Act requires a Complainant to establish facts, from which it may be presumed that there has “been discrimination in relation to him or her”, following which it is for the Respondent to prove the contrary.  A Complainant does have to establish the primary facts upon which they rely and that those facts are of sufficient significance to raise an inference of discrimination.  If there is no evidence establishing some sort of link between a person’s gender and the less favourable treatment, then the Complainant will not succeed in shifting the burden of proof”.  In the case of Rescon Limited V Scanlan, the Labour Court found that the Complainant “has produced no evidence to establish a nexus between his gender and the Respondent’s failure to offer him the disputed post, other than that a woman was appointed, and he was not.  In the court’s view, a mere difference in gender under a difference in treatment (in the sense that the comparator was appointed, and the Complainant was not), could never in itself provide a sufficient evidential basis upon which to raise a presumption of discrimination”. 

The Complainant further noted section 4-50 of the above publication where they added “less favourable treatment of pregnant employees, employees on maternity leave or employees recently returning from maternity leave, is surprisingly still commonplace, both in Irish and European Society, in spite of it being clearly outlawed for many years.  Depending on the circumstances and, significantly, depending on the applicable law, such treatment may or may not be unlawful and, even where it is unlawful, there are degrees of how seriously it would be viewed and reprimanded by the law.  In general, where an employee suffers significant damage in her employment as a result of pregnancy, her employer will be severely dealt with by law”. 

The Complainant submitted that a good recent example was the case of O’Brien V Persian Properties, trading as O’Callaghan Hotels, where compensation of €315,000 was awarded to a woman who had been discriminated against and dismissed because of her pregnancy, which was intended by the Equality Officer to be an effective, proportionate and dissuasive remedy and was structured to be proportionate to the Complainant’s salary and to dissuade the Respondent and other employers from unlawful discrimination. 

The Complainant noted the Council Directive 2006/54 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast) which stated:

“Discrimination shall include … any less favourable treatment of a woman related to pregnancy or maternity leave within the meaning of Directive 92/85/EEC”. 

The Complainant further noted that in Irish Law, protection against pregnancy discrimination is encapsulated in the Employment Equality Act, 1998, and noted that section 6 (2A) states:

“(2A) Without prejudice to the generality of subsections (1) and (2), discrimination on the gender ground shall be taken to occur where, on a ground related to her pregnancy or maternity leave, a woman employee is treated, contrary to any statutory requirement, less favourably than another employee is, has been or would be treated”.

The Complainant further noted the Employment Equality Act, 1998, which further protects against pregnancy discrimination, whereby once the Complainant establishes a prima facie case of discrimination, the burden of proof shifts to the Respondent. 

The Complainant noted that it was well established in Irish Law that the mere fact of pregnancy is enough to shift the burden of proof over to the employer once the Complainant has established a prima facie case of less favourable treatment due to pregnancy.  The Complainant further noted section 85A of the Employment Equality Act, 1998, which states that the Complainant must produce evidence “from which it may be presumed that there has been discrimination in relation to him or her, [and] it is for the Respondent to prove the contrary.

The Complainant opened further case law in relation to pregnancy related gender discrimination and noted that in all of the aforementioned case law, it was abundantly clear that the Complainant was discriminated against on her return from maternity leave and that the Respondent had a duty to the Complainant that was well established in both common law and statute.

Witness Evidence – The Complainant

The Complainant outlined that she had commenced working as the Premium Spirits Marketing Manager in 2018 and that in that role she had responsibility for the following:

·        Developing and defining the broad marketing strategies for various brands

·        Budget Management

·        Working with Shop and Marketing Teams

She outlined that this was her second maternity leave and that she had advised her manager, firstly verbally and later in writing of her planned leave arrangements.  She stated that the Respondent had initially recruited an external candidate to cover her maternity leave, but that the individual later declined the job, and so, an internal employee was seconded to provide cover.  She stated that prior to her return to work, following maternity leave, she attended the Christmas party in 2023 as she wanted to rebuild connections, having been off for a long time.

The Complainant confirmed that in early January she needed to drop back the laptop and she wanted to set up a handover with meeting Employee 1, so she sent an email to Manager 1.  She confirmed that, in all, she sent 3 emails but received no response.  She stated that she had expected a reintroduction plan but that when she received no contact from the Respondent, she emailed Manager 1 on 18 January and asked that he contact her by phone the following day.  She advised that she felt apprehensive about the call as there had been no contact.

The Complainant advised that Manager 1 did call her on 19 January in the afternoon and again she described feeling nervous that she was about to hear “bad news”.  She stated that initially Manager 1 just updated her on what had been happening and that she then thought that “all was ok”.  However, she stated Manager 1 then advised her that she would not be returning to the role she held prior to maternity leave, he gave an overview of the role but at that time he had not decided on the title.  The Complainant advised that her initial view was that the role was a demotion and that she advised Manager 1 of her concerns in that regard.  She stated that Manager 1 asked her to trust him, that he believed the new role would be a good move for her. She stated that she did not want to be seen to “throw the toys out of the pram” so she agreed that they would sit down upon her return on the following Monday and discuss the matter in more detail.  She stated that she expected a “bigger conversation” on Monday but that upon her return on Monday there was no one there to meet her and that although she emailed Manager 1, he was not available. 

The Complainant outlined that her next engagement with Manager 1 was when she took part in a Teams meeting later that afternoon.  She advised that Manager 1 announced to everyone on the Teams meeting that the Complainant was moving to the Marketing Team and taking up the new role and that he advised that meeting that he had spoken to the Coffee Team that morning.  The Complainant stated that she was shocked that he had announced the change to both teams without finalising the discussions with her but that she didn’t want to “get into it” at the meeting and so at the end of the meeting she asked to speak to him separately.  She advised that Manager 1 told her that he wasn’t available but that when she pressed for the meeting, he said he could give her 5 minutes.

The Complainant advised that Manager 1 reiterated to her that this was a good role, that he was working on the job description and would send it on to her.  The Complainant further advised that she again raised her concerns that this was a demotion, to which Manager 1 replied that “nobody cares about titles or demotions”.  She noted that when she raised the question of there being no budget assigned to the role Manager 1 responded that he would get Employee 1 to assign “a small bit of the budget to her.”

The Complainant confirmed that she received the job description for the new post after close of business on Monday 22 January but that she did not get an opportunity to review it until Tuesday 23 January.  She advised that she then had even further concerns, and she noted that the experience required for the role was 3+ years, while she had more than 16 years’ experience.  She further noted that the experience required was in a marketing function, while the experience necessary for the role of Premium Spirits Marketing Manager was experience in marketing management.  She stated that it was clear that the new role was “almost a graduate role”.  She also noted that her substantive role involved as a key duty “strategic management” where the new role was an operational role.  The Complainant stated that she saw the new role as having a negative impact on her career trajectory, that if she wanted to move jobs in the future, she would be describing a role that did not report to director level and that this would be negatively viewed by prospective employers.  She also stated that while this exposure was reduced internally, nonetheless it was evident that all the strategic planning would not be with her in the new role.

The Complainant stated that she was upset on that Tuesday, particularly as she could not get to meet Manager 1.  She advised that she contacted the Citizens Advice Bureau who confirmed her entitlement to returning to her substantive post. She stated that she emailed Manager 1 again that evening at 5.58pm but that she got no response.  She advised that she had a panic attack later that evening and had to attend the doctor the following day.

The Complainant confirmed that she had a good relationship with Manager 2 in HR.  She described the phone call which took place between them and confirmed that it was “friendly” at the beginning but that she got upset on the call.  She advised that Manager 2 confirmed to her that she was entitled to return to her job.  She confirmed that she outlined some of the difference between her job and the new job and that Manager 2 stated that the grade of the job should be contained in the letter of offer and that she was surprised that the Complainant had not received one.  The Complainant confirmed that Manager 2 had advised her to not let Manager 6 issue her proposed email.

She confirmed that she did not engage further with Manager 2 after that call as she had a panic attack that night and was out on sick leave.  She confirmed that she saw the doctor on 25 January, that she was advised that she had an acute reaction to the sequence of events and that she needed space and time.  She advised that she was not in a position to engage directly and that she arranged for everything to go through her solicitor.

The Complainant advised that Manager 1 never confirmed the grade for the new job, the title or the remuneration for the role in their telephone call of 19 January.  She stated that she understood there would be further discussion and that it wasn’t a “fait accompli”, however, she stated that her perception changed after Manager 1 announced the change on the Teams meeting and after he said at that meeting that he had also advised his own team earlier that morning.

The Complainant stated that she had told Manager 1 that she trusted him but that she had not said she would give “the role a go” during that conversation and that while she did say to Manager 1 that she trusted him, she also made him aware of her reservations.  She had advised him that she wanted to see the job description and would remain open to a conversation which she expected to take place on her return the following Monday.  The Complainant was emphatic that she never said she would give the role a go but that she had said she would review the job description and discuss the matter further on her return.

The Complainant stated that her reservations about the new role stemmed from the absence of “Manager” from the job title and from the fact that the role had no budget or people management elements and was a much more operational role.  The Complainant confirmed that, to her knowledge her substantive post was still there, that it was still active.  She acknowledged that the new role had been advertised but with some alterations to the job description.

The Complainant confirmed that she handed in her resignation on 15 March and returned all property belonging to the Respondent on 5 April.

The Complainant concluded by giving evidence of her medical issues and treatment over the next period.  For the purpose of the Complainant’s confidentiality and as these matters have no direct bearing on the instant case, I do not propose to outline that evidence in this decision.

The Complainant also stated that the events had a significant impact on her mental health and on her self-confidence.  She stated she didn’t want to look for a new role because she would need to explain the circumstances of her leaving.  She stated she felt she was being forced out.  She confirmed that ultimately she had gone back to work for a previous employer.

Cross Examination – The Complainant

The Complainant confirmed that she accepted that her contract provided for changes and that she would be notified in writing of any such change within 1 month.  She also confirmed the brands for which she had responsibility prior to her maternity leave and that there was a capacity issue in terms of the volume of work.   She also accepted that she and Manager 1 had had discussions about the issue prior to her maternity leave and that Manager 1 had been making efforts to address the problem.  In response to questions put by the Respondent Representative about the results of engagement surveys the Complainant declined to comment as she had been on maternity leave at the time of the surveys being undertaken and she had no first-hand knowledge of those surveys.

The Respondent Representative put it to the Complainant that the details of those surveys appended to the Respondent submission demonstrated that the changes related to capacity issues and that the change was impersonal to which the Complainant responded that she was the one being moved on her return from maternity leave.

The Complainant accepted that the workload had increased and that the split of the role was due to a response to a genuine capacity issue.  She also accepted that Manager 1 had apologised for the late notification to her of the change and had explained that this was due to the lateness of getting approval for the new post.

In response to the Respondent Representative, the Complainant confirmed her acceptance that Manager 1 had advised her, during the call of 19 January, that the workload of the Premium Spirits and Coffee Team had grown to such an extent that it was having a negative effect on the team and that as a result he had included a headcount request in the 2024 business plan, for a role that would support both premium spirits and coffee and would sit within the Marketing team.  The Complainant did not accept that she was advised of the title of the job at that time and advised that the first time she heard the title was while she was on the Teams meeting. 

The Respondent Representative put it to the Complainant that, on that call, Manager 1 had advised her that the role would generally cover the trade marketing aspects of these categories (alcohol and coffee), leaving the brand aspects to Employee 1 and Ms. Crozier.  While the Complainant accepted that was the case, she advised that she had informed Manager 1 of her view that such a change would constitute a demotion.

The Complainant further confirmed that Manager 1 had advised her that he believed the new role would be a good career move for her, but she still had concerns and that though she stated she did trust him, she had advised she would await the job description and further discussion upon her return to work.  She also confirmed that she did not accept that that her only concerns related to the reporting structure, and she stated that she had concerns in relation to the job content.

The Complainant further stated that she was “side-balled”, that she had expected to come back to her own role.  She stated that when Manager 1 announced her taking up the new role and the arrangements planned for her substantive role that there was no surprise among those individuals and that Employee 1 was not surprised. The Complainant did not accept that she had not asked for the element of the role that was to be assigned to Employee 1 but stated that she had said to Manager 1 that she should be going back to her original job.  She confirmed she didn’t comment on the split of duties because she had not seen the job description at the time of the initial conversation. 

The Complainant confirmed that during the call on Friday 19 January she was under the impression that the change was “not a done deal” but that after she received the job description and after the meeting on Monday, she was left in no doubt but that the decisions had already been made.

The Respondent Representative put it to the Complainant that Manager 1 was clear that while the Complainant had some reservations, she trusted him and would “give it a go”.  The Complainant responded that she had assumed she would be getting her job back after maternity leave and that therefore she didn’t want to “throw the toys out of the pram”.  She stated that while she didn’t reject the new role outright, she had made clear to Manager 1 that she wasn’t happy about it.

The Respondent Representative put it to the Complainant that she had taken a light approach when seeking a meeting with Manager 1 on her first day back and had not expressed any urgent need for a meeting.  The Complainant accepted that her email in that regard had not been particularly forceful but that if she had known that Manager 1 was going to announce the change as a fait accompli to the Teams meeting she would have been insistent and she posed the question as to why she would have sought an urgent meeting when she had not been furnished with a job description at that point.  She further advised that she only got the job description after the Teams meeting, after she then insisted on a meeting and after she requested the job description again during that discussion.  The Complainant referred again to her discussion with Manager 1 after the Teams meeting and noted that she raised concerns about the title, the reporting structure and the lack of a budget for the role.  She stated that Manager 1 responded to her that he would ask Employee 1 to assign a small budget from the current role and that nobody cared about titles and structures.

The Complainant confirmed that she had to cancel her meeting scheduled for 23 January due to sick leave and that the following day she did not respond to calls etc as she was unwell and not using her laptop or work phone.  She stated that she was not in a position to respond.  She confirmed that she saw her GP on 24 January and submitted her medical cert on 25 January.  The Complainant accepted that Manager 2 had tried to make contact again but that she had already received advice from her GP to have no contact.  She stated that as far as she was aware the Respondent had been alerted by her solicitor to the GP’s advice.

The Respondent Representative put it to the Complainant that the emails exchanged between her and Manager 1 on 22/23 January clearly show that this was “not a done deal”, to which the Complainant replied “If it was not a done deal why communicate it to two teams on 22 January and why would the other manager plan to issue a communicate to her team”.

The Complainant stated that Manager 1 was evasive, that she felt he didn’t want to hold the conversation and that she felt she was being bullied into taking the role.  She noted that Manager 1 had said that the first few days would be an opportunity to bring her up to speed but that nothing was in place to that end.  The Complainant stated that she didn’t feel she was held in high esteem, that she felt she was being pushed out of her role and that all trust with the Respondent was broken.

CA-00062923-001

The Respondent submitted that the Complainant was provided with a Contract of Employment on the 21 June 2018. 

The Respondent noted that the Complainant alleged she was not notified in writing of a change to her terms of employment, however, in her complaint form she also referred to having a call with Manager 1 on the 19 January 2024, prior to her return to work, and of her being verbally advised on that date that she was moving to the role of Portfolio Department Lead on her return to work.  The Respondent noted that the complaint form also referred to the Complainant meeting with Manager 1 on the 22 January 2024 and receiving a written job description on that date, which was her notified return to work date.  The Respondent submitted that the Terms of Employment Act is concerned with information being provided to an employee and, to ensure that employees are informed of changes to the particulars, employers are obliged to furnish in a written statement to employees under the act.  The Complainant’s complaint in her WRC form stated that the changes were without “consultation”, without “objective justification” or amounted to a demotion or less favourable treatment and the Respondent submitted that these issues were outside the scope of the Terms of Employment (Information) Act. 

The Respondent noted that the Complainant had not identified the particular section of the Terms of Employment (Information) Act which she alleged was breached and that it would appear that the Complainant was asserting that she did not receive written notification of changes (which statutory obligation to provide notification extends only to changes to the particulars of the statement required to be furnished by the employer under sections 3, 4 or 6 of the Terms of Employment Act), in breach of section 5 of the Terms of Employment (Information) Act, however, the Respondent submitted that the act provides that the employer shall notify the employee in writing of the nature and date of the change “as soon as may be thereafter but no later than:

(a) the day on which the change takes effect, or

(b) where the changes consequent on the employee being required to work outside the state for a period of more than a month, the time of the employee’s departure”. 

The Respondent noted that the Complainant was advised verbally of the changes prior to her return to work and was provided with a written job description on her first day back at work.  The Respondent noted that her terms and conditions in relation to her remuneration and other particulars obliged to be furnished by an employer to an employee under the act remained unchanged, and further submitted that the Respondent never suggested otherwise, and had assured the Complainant that this was the case.

The Respondent submitted that in all the circumstances, it was denied that there was any breach of the Terms of Employment (Information) Act as alleged, or at all. 

Without prejudice to the foregoing the Respondent also submitted that if there had been a breach of the Terms of Employment (Information) Act, it was nominal and had no practical consequences for the Complainant as she had already been advised verbally of the changes in questions and was provided with a job description on her first day back, when the changes took effect, and that as such, no award of compensation should be awarded.  The Respondent relied on the position of the Labour Court in Patrick Hall V Irish Water TED161, and in the case of Component Distributors (CD Ireland) Limited and Brigid (Beatrice) Burns, to support its position. 

CA-00062923-003

Preliminary Issue – Amendment to the Complaint Form:

The Respondent noted that the Complainant sought to amend the complaint form to include in the family status as the reason for discrimination contrary to the Employment Equality Act.  The Complainant also sought to amend the complaint form to include a complaint of penalisation which penalisation is alleged to have occurred following the Complainant exercising her entitlement of parental leave, which the Complainant availed of after completion of her maternity leave and before her return to work in January 2024. 

The Respondent objected to these proposed amendments and submitted that firstly, it was not accepted that the factual matrix set out in the complaint form cover the above-mentioned changes or claims as suggested by the Complainant.  The Respondent submitted that the complaint form made no reference whatsoever to the Complainant’s family status and equally there was no mention of the Complainant exercising her right to parental leave or suffering any consequences whatsoever from exercising said right.  The Respondent submitted that it was clear from the correspondence at appendix 10 of the Complainant’s submission, that insofar as the Complainant was seeking to extend out the period of maternity leave by reference to additional weeks of parental leave and annual leave, that this request was facilitated without issue by the Respondent prior to her return-to-work date.  The Respondent further submitted that the Complainant had not identified any act of penalisation as alleged.  The Respondent noted that the Complainant attended work for two days, raising issues with HR verbally on the second day, (23 January 2024) and briefly in an email at close of business on the 23 January 2024, before immediately commencing a period of certified leave from the 24 January 2024, which leave continued until her resignation and termination of employment. 

The Respondent noted the case of Department of Foreign Affairs V Patricia Cullen (EDA116) which referred to Co Louth VEC V Equality Tribunal  [2009] IEHC 370, and the quote from J McGovern, relied on by the Complainant of her updated submissions “the fundamental principle adumbrated by the judge is that, by analogy with the practice of civil proceedings in the ordinary courts, a Complainant should be permitted to amend his or her original complaint where the justice of the case requires it”.  McGovern J did, however, add an important qualification to this general principle, in pointing out that an amendment can only be made where the general nature of the complaint remains the same.

The Respondent submitted that the alleged penalisation for exercising rights under the Parental Leave Act 1998, after the Complainant’s return to work following her maternity leave, which are not referenced at all in the complaint form, is an entirely different claim which has not been particularised at all in the complaint form submitted to the WRC.  Further the Respondent submitted that the Complainant had not asserted any less favourable treatment on the grounds of her family status in the complaint form, with the only comparator cited a notional man who had taken parental leave.  Employee 1, an existing employee who was seconded to the role of Premium Spirits Marketing Manager during the period of the Complainant’s maternity leave, has the same gender and family as the Complainant. 

The Respondent also submitted that by continued analogy with amendments to pleadings made in civil cases, amendments are not permitted where the claim is sought to be included for the first time would otherwise be statute barred.  The Complainant asserts in her complaint form that it was immediately clear to her on the call of the 19 January 2024, that she was demoted.  Further, in circumstances where the Complainant was not attending work from the 24 January 2024 onwards, the Respondent submitted that any claims of less favourable treatment on the grounds of family status, and/or penalisation on any ground, should have been made within six months of the 24 January (or at the very least within six months of her resignation on the 25 March 2024).  The Respondent noted that it was open to the Complainant, who had at all material times, been legally represented, to preserve her position by submitting further claims to the WRC within that six-month period from January 2024 but that she did not do so. 

The Respondent noted that Section 77 (5) (a) of the Employment Equality Act, as amended, provides that: “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 six months from the date of the occurrence of the discrimination or victimisation to which the case relates, or, as the case may be, the date of it’s most recent occurrence”. 

The Respondent further noted Section 77 (5) (b) then provides that on application by a Complainant that the period of six months may “for reasonable cause” be substituted for a period “not exceeding 12 months”.

The Respondent noted that it is clear from the above provisions that the Adjudication Officer may only entertain a complaint or dispute if it is referred within a period of six months from the date of occurrence of the discrimination or victimisation.  The Respondent noted that the Complainant submitted her complaint form to the WRC on the 19 April 2024 and that the cognisable period is therefore the 19 October 2023 to the 18 April 2024. 

The Respondent noted that while it is accepted that extensions of time beyond six months can be made in certain circumstances for reasons “of reasonable cause”, no such circumstances had been advanced in either set of submissions put forward by the Complainant.  The Respondent submitted that it is well established that the ignorance of your legal right is not a basis for extending time, nor is such ignorance even asserted in this case in circumstances where the Complainant was clearly legally represented from at least the 31 January 2024 onwards. 

The Respondent also submitted that if the Complainant had sought to formally address issues through the Respondent’s HR policies, which it is commonplace she did not invoke, the invocation of such processes also does not operate to prevent a complaint being submitted within the statutory timeframe of six months. 

The Respondent cited the case of O’Donnell V Dun Laoghaire Corporation [1991] ILRM 301, and the case of Cementation Skanska V A Worker DWT0425 and based on the case law arising, submitted that Complainant must identify discriminatory acts and alleged less favourable treatment than a comparable person i.e. of a different gender, within the cognisable period.  No comparator is identified in the claim form, save a bare assertion that a notional man who had taken parental leave would have been treated differently.  The Respondent again noted that Employee 1 had the same gender and family status as the Complainant. 

Preliminary Issue – Initial Burden of Proof Under the Employment Equality Act:

The Respondent submitted that the Complainant must establish, and be able to identify prima facie facts, within the cognisable period, of sufficient significance to give rise to an inference of discrimination on the grounds of the Complainant’s gender, being six months immediately preceding the submission of the complaint form on 19 April 2024. 

The Respondent noted section 85A of the Employment Equality Act and stated that it places the initial burden of proof on the Complainant.  In these circumstances, the Complainant must not only establish the primary facts upon which she relies, but also prove that those facts are of sufficient significance to raise an inference of discrimination.  The Respondent noted that it is only if this initial burden is discharged and the AO is satisfied that the facts as established are of sufficient significance to raise a presumption of discrimination, that the burden of proving that there was no infringement of the principle of equal treatment passes to the Respondent.  If the Complainant does not discharge the initial probative burden required, her case cannot succeed. 

The Respondent noted section 6 (2) (A) of the Employment Equality Act, that provides that where two persons of different gender, one is a woman and the other is a man, are treated differently, this will constitute as unlawful treatment. 

The Respondent noted that the extent of the evidential burden which a Complainant must discharge before a prima facie case of discrimination can be made out was considered by the Labour Court in Southern Health Board V Mitchell [2001] ELR 201:

“the first requirement is that the Complainant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a Complainant must prove, on the balance of probability, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.

It is only if these primary facts are established to the satisfaction of the court, and they are regarded by the court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the Respondent to prove that there is no infringement of the principle of equal treatment”.

In its submission, the Respondent also relied on the case law set out in the following cases:

·        Melbury Developments Limited V Valpeters [2010] 21 ELR 64

·        Dyflin Publications Limited v Spasic EDA0823

·        HSE North Eastern Area V Sheridan EDA0820

·        Smith V Cisco Systems

Based on the above case law, the Respondent submitted that the Complainant must identify and establish facts of sufficient significance to raise a presumption of discrimination to discharge the initial burden of proof under section 85 A of the Employment Equality Act.  The Respondent submitted that the Complainant had failed to establish such facts and consequently her claim must fail. 

The Substantive Issue

Background:

It was submitted that the Complainant commenced employment with the Respondent as Premium Spirits Customer Marketing Manager on the 21 June 2018 initially on an annual gross salary of €52,000.  The title of the Complainant’s role subsequently changed to Premium Spirits Marketing Manager, but no issue was raised regarding this change of title.  A contract of employment was agreed and signed between the parties at the time of commencement of employment. 

The Respondent submitted that clause 3 of the contract of employment described the Complainant as being employed as Premium Spirits Customer Marketing Manager initially reporting to the Premium Spirits Manager.  It also stated “Your reporting line may change to reflect changes in the company’s business organisation in which event you will report to such other position in the company as may be notified to you from time to time.  You will also acknowledge that your key duties and responsibilities will also include those reasonably notified to you by the company from time to time.  You may be required to undertake alternative or additional duties from time to time, as the company may reasonably require.  The company reserves the right to change your area of work, specific responsibilities and/or reporting line, as the needs of the business require”.

The Respondent submitted that clause 21 of the contract also provided "The company reserves the right to make reasonable changes to any of your terms of employment.  You will be notified in writing of any change as soon as possible and in any event within one month of the change”.

The Respondent noted clause 19 of the Complainant’s contract of employment referred to the Respondent’s disciplinary and grievance procedure being available to employees on the Respondent’s internet site or from the HR Department and it also noted the existence of a sickness and absence policy and a detailed maternity policy. 

The Respondent submitted the following sequence of events:

·        On the 8 December 2022 the Complainant commenced a period of period leave.  This was the Complainant’s second period of maternity leave (no issue was raised regarding the Complainant’s return to work following her first period of maternity leave).  The Respondent noted in the Complainant’s submission that the Complainant advised the Respondent on the 27 November 2023 that she would be returning to work from her period of maternity leave on the 22 January 2024

·        Prior to the commencement of maternity leave, the Complainant’s key responsibilities comprised of planning and ensuring execution in the market of the marketing plans for various brands, reporting to Manager 1.

·        Over time, including the almost thirteen-month period the Complainant was on maternity leave, the role expanded to include more brands, larger event planning (such as summer festival campaigns) and greater communication and liaison with the Respondent’s licenced trade sales team, due to the COVID restrictions ending.  In addition, there had been a significant increase in stakeholder management with brand partners. Manager 1 was concerned that capacity issues in the team were having a negative impact, and on 8 September 2023, he submitted a business case for one additional FTE to work with Manager 3’s team. 

·        The Respondent operates frequent employee engagement with his employees.  Manager 1’s concerns, and the fact that the growth in the Premium Spirits and Coffee Team, without provision of additional resource, was negatively impacting on the team, is clear from the 2023 survey results (received during the Complainant’s period of maternity leave).  The results of the survey sent to Manager 1 on the 24 October 2021, showed the Premium Spirits Team as being wholly red and with the lowest scores across the group.

·        A further collaboration survey from December 2023 (in relation to how well the team can collaborate with other teams and colleagues) also showed poor scores for the Spirits and Coffee team, which Manager 1 attributed to capacity issues on the team.

·        Having regard to the expansion of the role, and the business focus of increased resources in the area of Premium Spirits, with additional resource required to support the coffee side ‘new business team’ (‘new business team’ is a term used to collectively name the combined Premium Spirits and Coffee teams that sit under Manager 1’s functional control), it was clear to Manager 1 that the full scope of the work required was too broad for one person. However, the additional FTE role sought by Manager 1 was not approved. Due to additional capacity that had arisen on Manager 3’s team, it was ultimately agreed, after consultation with HR, that rather than having one Marketing Manager with responsibility for Premium Spirits and Alcohol, the role would be split, with the intention going forward for the Premium Spirits Marketing Manager (previously title Premium Spirits Customer Marketing Manager), to retain responsibility for brand elements of the Spirits portfolio, while other duties (eg trade marketing for Premium Spirits and Coffee brands), would be within the remit of the new role, the Portfolio Department Lead (alcohol and coffee), as part of the Marketing team lead by Manager 3.

·        It is common case that the Complainant was advised prior to her notified return to work date, that her title and reporting structure would change.  This notification was via a call with Manager 1 on the 19 January 2024.  While there is some dispute between the parties about precisely what was discussed on the call, it is not in dispute that Manager 1 provided the Complainant with a verbal overview of the position she would be returning to and it’s reporting structure during the call on the 19 January 2024.  

The Respondent submitted that it was Manager 1’s position:

·        That during the call of the 19 January 2024, he advised the Complainant that the workload of the Premium Spirits and Coffee team had grown to such an extent that it was having a negative effect on the team, teamwork/life balance and overall performance.

·        That because of the foregoing, he had included a head count request into the 2024 business plan for a role that would support both Premium Spirits and Coffee and would sit within Manager 3’s team. 

·        That the Complainant’s title would be Portfolio Department Lead (Alcohol and Coffee)

·        That he advised that the role would generally cover the trade marketing aspects of these categories (Alcohol and Coffee), leaving the brand aspects to Employee 1 and another employee (Employee 2)

·        That most of the role would focus on Premium Spirits, estimating this to be about 70% of the role’s workload.

·        That he thought this was a great role for the Complainant personally, as it would add Coffee to her category skillset, moving her into Manager 3’s (larger) team, with greater potential for future marketing roles, and was in line with the Complainant’s previous career conversation, where the Complainant had stated an interest in potentially moving into a team that reported to Manager 3 as Marketing Director.

·        That while the Complainant did query whether this could be seen as a demotion, this appeared to be due to the change reporting in structure and he confirmed this was not a demotion, that the team was bigger and had more layers so not everyone reported to the function head.

·        That the Complainant’s grade (grade 10) remained the same as did her remuneration package.

·        That similar changes previously, moving Premium Spirits and National Account Manager and Key Account Manager roles from his team to the bigger sales channels team, also involved people moving from function head minus one to function head minus two but that this had worked out well.

·        That there would still be a dotted reporting line to him, and the role would be involved in all team forums, brand partner meetings etc.

·        That he regretted not having an opportunity to discuss this role with her earlier, but this was due to the budgetary approval and HR issues that caused some delay.  The Respondent submitted that this was in accord with the Complainant’s own account that she was advised that funding for the position had only recently been approved as explanation for why she hadn’t received more notice and detail of the position prior to her return.

·        That the initial objective on her return was just to get her up to speed on how things had been developing in the Spirits part of the business and later in her first week, they could link in with Manager 3 and her team to discuss the roles and responsibilities in more detail. 

The Respondent submitted that it was also Manager 1’s position that he and the Complainant had discussed the growing challenges of the workload associated with the role on several occasions prior to her commencing her maternity leave and the further growth outlined by him at their meeting, was not challenged by the Complainant.  It was also Manager 1’s position that the proposed split of the role was not presented as a fait accompli and was very much presented as an opportunity for discussion with the Complainant.  The Respondent submitted that the Complainant did not take issue with the proposed split at the meeting (i.e. she did not suggest she should be offered the duties retained by Employee 1).  The Respondent noted that while the Complainant had voiced some reservations on the call, the call concluded with the Complainant indicating that she trusted him that the role would be a good development opportunity for her, liked the idea of developing her knowledge in the Coffee category and was “going to give the role a go”.  The Respondent submitted that based on that conversation, Manager 1 understood that the Complainant had agreed to try the role and that it was also understood that there would be further discussions about the precise duties and responsibilities later in the week, including with the Function Head, Manager 3.

The Respondent submitted that on the 22 January 2024, the Complainant returned to work following her period of maternity leave and that she was provided with the job description on that day. 

The Respondent further submitted that it was disingenuous for the Complainant to suggest that Manager 1 refused to meet her on her return to work on the 22 January, the Respondent pointed to the clear exchange of messages between the Complainant and Manager 1 on the 22 January, asking if he was free for “a call at some stage” and referencing that the Complainant intended to submit her expenses.  There was nothing in the message to suggest that this was particularly urgent and nothing to suggest that the Complainant was aggrieved in some way.  The Respondent noted that Manager 1 replied on the expenses issue and advised her to submit them and on the request for a call, indicated that he was pretty “back-to-back” but “would find a slot” and to give him a shout if there were any issues.  The Complainant replied that it was “no problem, we can slot time in later in the week” and further requested a job specification for the role as she would like to “review it”. 

The Respondent submitted that Manager 1 had a group call with the Complainant later that day to reintroduce her to some members of the team to include Employee 1.  The Respondent noted the Complainant was critical in her submission of the fact that Manager 1 “announced” the Complainant’s move to the individuals on this call, this followed on from their call on the 19 January, where the Complainant confirmed she would give the role a go and was based on Manager 1’s understanding of the Complainant’s acceptance of the position based on that call. 

The Respondent submitted that Manager 1 also met the Complainant on the 22 January after this meeting when she expressed it was important for him to do so.  Manager 1 discussed the Complainant’s concerns after the group meeting on the 22 January.  The Complainant again stated her concern was that it would seem like a demotion with Manager 1 reassuring her that that was not the case.  The Complainant raised concerns about not having budgetary responsibility and Manager 1 assured her that she was mistaken, and that she would have budgetary responsibility.  He advised her that he would send on the job specification.  The Complainant was provided with the job description, as requested, on the same day she returned to work.  The email to which the job specification was appended, also outlined the intention that the Complainant and Manager 1 would meet with Manager 3 and Manager 6 to go over the specifics of the roles and responsibilities in the coming week.

The Respondent submitted that it was at all times clearly intended to engage in further discussions with the Complainant about the specifics of the roles and responsibilities and, after those discussions, for matters to be formalised by way of a formal offer letter. 

The Respondent submitted that contrary to what was asserted by the Complainant, it was the Respondent’s position that the Portfolio Department Lead position was not a demotion and was in fact due to the larger size of the marketing team providing greater scope for grade progression for the Complainant, who was an experienced and valued employee.  The Respondent submitted that the Complainant appeared to have determined it was a demotion, solely on the basis of the reporting structure (despite being aware there was an additional layer in the reporting structure due to the increased size of the team from 2 to 29), and due to the level of experience required for the role set out in the job description.

The Respondent noted that the Complainant also appeared to take issue with the fact that the title of Portfolio Department Lead, did not contain the term “Manager”, the role was previously titled Portfolio Department Lead (Shopper Marketing Manager).  The change in role title, similar to the earlier change in the Complainant’s role title, from Previous Spirits Customer Marketing Manager to Premium Spirits Marketing Manager, was part of a broader exercise undertaken by the Respondent to standardise role titles across the group globally.  Despite the dropping of the term “Manager” from the Portfolio Department Lead title, it would still be considered to be a managerial post within the industry.  The Respondent submitted that it should also be noted that the term “Manager” in this context, referred to the fact that it was a senior position whereby the employee would have responsibility for managing their own tasks as well as having responsibility for managing client portfolios; and it was not indicative of having a number of direct reports.  The Respondent accepted that the Portfolio Department Lead would not have direct reports but equally the Respondent submitted that this was the case with the Premium Spirits Marketing Manager role. The Respondent noted that the role of Premium Spirits Marketing Manager did not have any direct reports, everyone reported to Manager 1 as function head due to the small size of the team. By agreement with Manager 1, a Brand Ambassador who worked primarily out of office “in the field”, would receive some day-to-day direction regarding what particular client meetings/store locations to attend from the Premium Spirits Marketing Manager who was office based, and that Manager 1 was responsible for all performance reviews, approval of annual leave etc. 

The Respondent submitted that on the 23 January 2024, Manager 6s advised that she was going to send her portfolio team an email to say that the Complainant would be joining, in case they heard from elsewhere.  In response the Complainant asked Manager 6s to hold off on sending this, as she had “not accepted the role yet” and she had “a few concerns over it that need discussion”.  Manager 6 replied, “no problem at all Lisa, if you need anything from me just let me know”.  Manager 6 (to whom the Portfolio Department Lead would report), had a brief but positive conversation with the Complainant on 23 January 2024, about how Manager 6 saw the role, and that the Complainant said she felt better after speaking with Manager 6.  Manager 6 was also due to speak with the Complainant together with Manager 3 later in the week.

The Respondent submitted that on the same day, the Complainant had a call with Manager 2, HR Business Partner and that she and the Complainant were friendly and on good terms and that the call commenced with a catch up.  The Respondent submitted that the Complainant then advised that she had not received an offer letter in relation to the new role and had not accepted the new role, yet Manager 1 had announced at a team meeting that she was moving.  The Complainant advised Manager 2 of her view that this was a demotion, as the position was called Lead, not Manager and reported to Function Head minus two.  The call concluded with the Complainant advising Manager 2 that she had a meeting with Manager 3 in the morning and would see what she had to say but in the interim, she advised that she had not accepted the new role.  Manager 2 advised the Complainant that she would look into the matter and would call her the following day at 12:00. 

The Respondent further submitted that at the end of that day, being the day after the Complainant returned to work, the Complainant sent an email to Manager 1 at 5:58pm, copying a number of other individuals, with the subject “Re Portfolio Lead – Alcohol and Coffee”.  In the email the Complainant referred to having concerns that the role being offered was a demotion, following the verbal overview she had been given, which concerns were “cemented” now that she had viewed the job specification, as the “title, overview and experience required for the role aren’t equivalent with the Premium Spirits Marketing Manager role”.  The Respondent noted that the very next day, on the 24 January 2024, the Complainant telephoned the Respondent to advise that she was sick and would not be attending work that day.  Consequently, no meeting with Manager 1 could take place the following day to discuss matters, as had been requested in the Complainant’s email.  The Respondent stated that in fact it was not possible for the Respondent to have any meeting with the Complainant thereafter to discuss these issues that had been raised by her verbally on the 23 January 2024, as the Complainant did not return to work thereafter and submitted her resignation without invoking any grievance process.  The Complainant also cancelled the meeting invite she had received from Manager 3. 

The Respondent further submitted that Manager 2 attempted to contact the Complainant by phone at 09:30am on 24 January but her call was declined.  Manager 2 also sent the Complainant a Microsoft Teams invite at 12:00 but received no reply.  Manager 2 then sent a WhatsApp message to the Complainant on her personal number at 12:04pm and again at 16:32pm but received no reply.  The Respondent submitted that the following day the Complainant sent in a medical certificate confirming her unfitness for work from the 24 January 2024 until 20 February 2024.  No reason for the certified absence was detailed in that certificate. 

The Respondent submitted that Manager 2 made a further attempt to contact the Complainant on her company phone on 25 January at 2:30pm and left a message asking the Complainant to call her.  The Respondent submitted that the Complainant subsequently submitted, through her Solicitor, a letter from her GP dated 1 February 2024, certifying her medically unfit to work from 24 January 2024 until the 20 February 2024.  The letter described this as being based on “an acute stress reaction, linked with recent workplace events concerning her employment role”. 

The Respondent submitted that in light of the correspondence and medical information received, the Respondent reasonably, made an Occupational Health appointment for the Complainant for 8 February 2024.  Manager 2 advised the Complainant of the appointment on both her work and personal email addresses, as the Respondent did not have the Complainant’s current home address on file. 

The Respondent submitted that the Complainant did not attend the medical appointment on 8 February, nor was the Respondent advised of any reason for nonattendance.  The Complainant’s non-attendance at this appointment did not accord with the Respondent sickness and absence policy and procedure.  The Complainant sent a further medical certificate covering the period from 21 February 2024 to 19 March 2024 and this was provided in or around 19 February 2024, although the medical certificate did not cite any particular condition, it simply referred to the patient being “unable to attend work”. 

The Respondent replied to the Complainant’s Solicitor letter dated 26 February 2024 on the same day setting out in some detail the background to and business reasons for the change in role.  It outlined that the Respondent’s marketing resources are assigned across its various product ranges, with the size of each department determining its operating model and reporting structure.  It outlined further that the Premium Spirits function comprised of two fulltime team members reporting into the Coffee and Premium Spirits Director, Manager 1, and that having regard to the total size of this team, the Premium Spirits Marketing Manager role reported directly to Manager 1.  The marketing team was larger, comprising of 29 team members and as such there were a number of additional layers in the structure.  Within that structure, a Portfolio Integration Manager role, which reported directly to the Trade Marketing Director, was the reporting line for the Portfolio Department Lead role.

 The letter further outlined that for the reasons set out, it was not reasonably practical to return the Complainant to the precise role and duties she had immediately before her maternity leave, as the role had grown to such an extent that it was required to be split.  It noted that the Maternity Protection Act 1994 and in particular section 27 of the act, recognised that arising from organisational change, it may not always be practical to return an employee to the precise role and duties they held immediately prior to commencing maternity leave.  Manager 1 also outlined to the Complainant that the duties of her role prior to maternity leave were going to be split and rather than having one Marketing Manager with responsibility for Premium Spirits and Alcohol, Employee 1 would stay on as the Premium Spirits Marketing Manager with reduced responsibilities for brand elements of the Spirits portfolio only, while the other duties, such as trade marketing for Premium Spirits and Coffee brands, would be within the remit of the Complainant as Portfolio Department Lead.

The Respondent noted in the letter that while the Complainant had suffered no detriment, it was acknowledged that the Complainant had been upset by recent developments, which was not the intention or the design of her line management or the Respondent and the letter further confirmed that the Complainant was held in high esteem in the Respondent organisation, and that it looked forward to welcoming her back to work as soon as she was fit to do so.  The letter also stated that the Respondent would be happy to discuss any concerns the Complainant had and directed her to the company’s grievance procedure should she wish to raise any complaint formally. 

The Respondent noted that the letter concluded by noting that the Complainant had been on certified sick leave from the 24 January and that in accordance with the Respondent sickness and absence policy and procedure, the Respondent had arranged for the Complainant to attend a medical examination appointment scheduled for the 8 February but that the Complainant had failed to attend.  It advised that a further appointment would be scheduled for prior to the 19 March 2024 and that the Respondent would continue to liaise with the Complainant directly in relation to those matters but would engage with her Solicitor in relation to any parallel legal matters. 

The Respondent submitted that it scheduled the Occupational Health appointment for the Complainant for 5 March 2024 and advised her accordingly.  However, the Complainant again did not attend the second scheduled appointment, nor did she advise of her nonattendance or reasons for same. 

On 25 March 2024, the Complainant tendered her resignation to the Respondent, referring to the offered role as “clear demotion based on title, reporting structure and experience required”.  The Complainant’s period of certified sick leave continued until the end of her employment and termination date of 15 June 2024. 

On 28 March 2024 the Respondent acknowledged the Complainant’s resignation letter that indicated it would have been the Respondent’s preference that the Complainant would have utilised and followed the Respondent’s internal grievance process to address any workplace issues and that the Respondent was “hopeful that engaging with the internal grievance process may help alleviate the effects of any unresolved dispute on your current health and support any return to work”.  The Respondent submitted that the letter also noted that the Complainant had, to that date, failed to state the reason for her current absence or attend the Occupational Health appointments organised by the Respondent to assess, amongst other things, her fitness to engage in any internal process.  The letter advised that the Respondent was disappointed they were unable to explore resolution of the Complainant and facilitate a return to work, the Respondent acknowledged the Complainant’s decision to resign and confirmed that in accordance with the contract of employment, the last date of employment would be 15 June 2024. 

The Respondent noted that there appeared to be some implicit criticism of the termination dates set out in the Respondent’s letter of 28 March 2024 in the submission of the Complainant, however, the Respondent stated that this was in accordance with the terms of her contract of employment, under which the Complainant was obliged to provide three months’ notice.  The Complainant’s email of resignation did not state her resignation was to take immediate effect and no issue was raised in relation to the termination date of 15 June 2024 by the Complainant or her Solicitor at the time. 

The Respondent submitted that at the time of her resignation the Complainant’s annual gross basic salary was €68,113.55.  The Respondent further noted that while the Complainant was on sick leave, she was paid sick pay in accordance with the Respondent’s sick pay policy, which provides for 100% of pay for the first four weeks of sick leave and then 60% of pay for a certain amount of weeks which is determined by the employee’s length of service.  The Complainant was paid 100% of pay for four weeks, followed by 60% of pay for eight weeks up until 12 April 2024. 

The Respondent noted that the Complainant submitted her complaints to the WRC on 19 April 2024 and that on 22 May 2024, the Respondent received pre litigation correspondence from the Complainant’s Solicitor advising of personal injuries the Complainant allegedly suffered due to “bullying treatment she has received in the workplace at the hands of her superior” and calling on the Respondent to admit liability. 

The Respondent drew the attention of the Adjudication Officer and asked that it be noted that the “personal statement of the Complainant submitted as an appendix to her submission, was not provided to the Respondent at any time prior to the Complainant’s decision to resign and was only seen by the Respondent for the first time as an appendix to the WRC submissions”.  The Respondent further noted that it had not seen any medical documentation from the Complainant in relation to the medical issues referred to by her in that statement and did not have the opportunity to have the Complainant medically assessed by Occupational Health as the Complainant failed to attend the two scheduled appointments before tendering her resignation. 

Witness Evidence – Manager 1

Manager 1 gave evidence under oath at the hearing on 27 January 2025.  He confirmed his role as function head with responsibility for alcohol and coffee and confirmed that he had 28 years’ service in the industry in various roles.

Manager 1 confirmed that there were significant demands on the team and that this had been an evolving situation over the previous 2/3 years.  He stated that the demands during both maternity leaves had brought the team almost to breaking point and that, as a result, he had sought an additional headcount.  He noted the impact of the workload on the team in 2024 and stated that regrettably his proposal for additional staff was not agreed.  He outlined that there was concern about the unknown impact of the deposit return scheme and a need to protect profitability. Manager 1 noted the results of the staff engagement survey, and in particular, he noted that there was no link person on the Premium Spirits & Coffee team with the Marketing Team.  He further noted that it became apparent that there was spare headcount capacity within the Marketing Team and that, as a result, a proposal was developed for the Portfolio Department Lead.  This role would be assigned some of the duties that had been part of the Premium Spirits Marketing Managers brief heretofore and would report within the Marketing team.  He confirmed that the post would be at Grade 10, i.e. the same grade as the Premium Spirits Marketing Manager.

Manager 1 stated that he was of the view that this post would present a good option for the Complainant upon her return from maternity leave, giving her the opportunity to work in a larger team with greater scope for career development.  He described the internal approval process and stated that it was only after the proposal had been agreed on 15 January that he was “allowed to discuss the changes” with the Complainant.

Manager 1 confirmed that he had received emails from the Complainant on 2, 8 and 15 January.  He confirmed that he had responded to the email of 15 January in relation to a new laptop and to confirm that he was available for a call on 19 January.  He noted that the Complainant was due back from maternity leave on 22 January and that “generally you would wait for a person to get back”.  He stated that this was his usual approach, that you must respect their space, that it can be a difficult time.

In relation to the phone call that took place on 19 January Manager 1 stated that it opened in a friendly, chatty manner.  He stated that he advised the Complainant that the team had been under strain, and he advised her that he had now been granted approval for a new role.  He stated that he told the Complainant that this was a good opportunity for her, was aligned to her previously stated career aspirations and he talked through the role.  He stated that he advised her he would provide her with the job description on the following Monday.

Manager 1 stated that at no time was the Complainant asked to accept the position or to say she wasn’t interested.  He stated that he assured her that the role was a grade 10 level (the same as her previous role) but he acknowledged that the Complainant did express concerns about the structure.  He stated that the Complainant had told him that she trusted him and that she would “give it a go” and that on that basis he felt it was ok to move forward.  He stated that the plan was for the Complainant to return to work and that a series of meetings would be organised to discuss the role and then a formal offer would be put to her.

Manager 1 advised that the Complainant did return to work on 22 January but that it was an incredibly busy day for him and that he had multiple meetings all day.  He noted that the Complainant did email him, but he advised that the email looked for a meeting “at some stage” and then later referred to “later in the week” and he stated that nothing in that email alerted him to any concern or urgency to meet.

Manager 1 confirmed that on the Teams meeting in the afternoon he outlined the proposal and that he didn’t “think the announcement described what happened”.  He stated that his team didn’t know but that Manager 3 and some HR staff were aware, so that he simply referred to it.  He stated that at no point did the Complainant say she was not interested in the role, so he simply informed the team what was happening. He confirmed that he had a call/meeting with the Complainant afterwards and that she said she was “blindsided” and again she raised concerns about a demotion and about budgetary responsibility, and she asked for the job description.  He stated that he confirmed that a small amount of Employee 1 budget would be assigned to the new role.

Manager 1 advised that he had a series of meeting on Tuesday 23 January and that he received an email at 5.57 pm from the Complainant.  He stated that she advised that she was very concerned about how things were being handled, and he stated that this was the first time he understood that this was drawing “an emotional response”.  He noted that in that email the Complainant also drew attention to concerns in relation to the job title, the experience required and noted that these were not equivalent to her substantive role.  He stated that while this would ultimately be a matter for HR, he had written the job description for the role rather than for an individual.  He confirmed that he didn’t see the email at that time, that it was a lot later in the evening before he saw it, that he recognised that it was based on “an emotional response” and so he did not reply until the next day.

He noted that the Complainant then went out sick and so there was no further communication between them.

Cross Examination – Manager 1

Manager 1 confirmed that he understood that the change was a process “we were working through” and he considered that the parties were still working through it at the time that the Complainant went out sick.  He stated that the process would only have been complete if a formal offer had been made to the Complainant and if she had accepted that offer.  Manager 1 also confirmed that he had not told Manager 6 that the Complainant had joined the team and that he had only had a general conversation about talking to the Complainant about the opportunity.

The Complainant Representative asked Manager 1 if he had put time in his diary to update the Complainant upon her return from maternity leave and he confirmed that he did not recall doing so.  He confirmed that he shared the job description with the Complainant on the evening of Monday 22 January but that he probably had it for about a week.  When asked why he had not sent it to the Complainant on that Monday morning, Manager 1 stated that he was too busy and that she hadn’t asked for it.

Manager 1 accepted that this was a “huge change” but that he understood the process was ongoing.  He accepted that he only provided the job description at the end of the first day back and after the team had been told.  Manager 1 accepted also that there was no mention of a trade spending budget but while not expressed in the job description he stated it was clear that the role was “end to end” and therefore apparent that a budget would be assigned.  The Complainant Representative put it to Manager 1 that the new role only required 3 years’ experience in a marketing function while the Complainant had many years’ experience in marketing management. Manager 1 replied that the job description was for the role, not for individuals.  In response to questions put by the Complainant Representative, Manager 1 advised that the role was being proposed as an option to the Complainant.  He confirmed that Employee 1 could move to the role but stated that he thought it was a good opportunity for the Complainant.

The Complainant Representative put it to Manager 1 that Employee 1’s contract for maternity leave cover was over and Manager 1 accepted that this was the case. The Complainant Representative also put it to Manager 1 that the Respondent owed it to the Complainant to put her back into her substantive position, to which Manager 1 replied that if the Complainant had said she was not interested he would have done so.  He noted, however, that her substantive role was a “diminishing role”.

Manager 1 confirmed that after the Complainant had left, Employee 1 remained on until she went on maternity leave in December, and he confirmed that he did advertise for cover for that maternity leave.  The Complainant Representative put it to Manager 1 that the exact same job as the Complainant had undertaken in her substantive role was advertised, with no change whatsoever.  Manager 1 replied that he wasn’t aware.

The Complainant Representative asked Manager 1 why he had not let the matter lie and allow the Complainant to return to work for a week or two before proposing the change.  Manager 1 replied that he had a duty as a manager to let the team know.  The Complainant Representative asked Manager 1 if others on the team were aware that the Complainant had not seen the job description and he replied that they were not.  When asked if others had seen the job description, Manager 1 replied that they had seen the “general ones”.  The Complainant Representative put it to Manager 1 that he should have sent the job description earlier in the day on Monday 22 January and Manager 1 accepted that he should, and he confirmed that he did not respond to the Complainant’s email on Tuesday 23 January.

The Complainant Representative referred to the engagement survey results and asked Manager 1 if his handling of the instant case was reflective of his leadership.  Manager 1 responded that that was a question that would need to be asked of the survey participants.

Manager 1 confirmed that he did not say that no cared about structures or titles.  He further confirmed that he did not seek to move Employee 1 because he saw the new role as a great opportunity for the Complainant to work in her area of interest.  In response to the Complainant Representative question about the level of urgency for introducing the change Manager 1 replied that it was very much needed.

Manager 1 was asked if he now believed he had made “the wrong call”, to which he replied that it was “very sad”, that he and the Complainant had had a great relationship and that she had a great career ahead with the Respondent.  He said his intentions were good but were misunderstood by the Complainant.

On re-direct Manager 1 confirmed that the new role was ultimately filled and was remunerated at Grade 10.  He confirmed that the successful candidate was due to take up post within 3 months and that the plan, as proposed would be fully implemented.

Witness evidence – Manager 2

Manager 2 advised the hearing that she was working in HR for approximately 12 years in various roles.  She stated that she had a lot of interaction with the Complainant over the years and that she considered her to be a close friend. 

Manager 2 stated that the Complainant returned from maternity leave and that she was surprised to see her back as she had said at Christmas that she would not be back until the end of January.  She said that the Complainant had asked for a catch-up meeting and that this was booked for Tuesday 23 January.  She stated that on the call the Complainant was her “usual bubbly self” and that they chatted about her new house and other personal matters.  She stated that then the Complainant told her about the discussion that had taken place with Manager 1 about the changes and that she became very upset and tearful.  Manager 2 stated that the Complainant saw the change as a demotion but that she acknowledged it was at the same grade.

Manager 2 advised that the Complainant told her about the email she had received from Manager 6 and her proposal to issue an email to her wider team confirming that the Complainant would be taking up the new role in her team.  Manager 2 stated that she advised the Complainant to contact Manager 6 and advise her not to issue the email and that she (Manager 2) would check the matter out further.  She further advised that she arranged a follow up meeting with the Complainant for 12 noon the following day.

Manager 2 confirmed that she spoke to the relevant managers and was assured that if the Complainant wanted to stay in her substantive job that this would be “absolutely fine” but that she was also advised that the new role presented a great opportunity for the Complainant.  Manager 2 advised that she joined the meeting call on Wednesday at 12 o’clock as agreed but that the Complainant did not join.  She advised that she sent a WhatsApp message to the Complainant but got no reply.  She stated that she sent a second message later but again got no reply but that she later heard that the Complainant had called in sick.

Manager 2 advised further that as she had an update for the Complainant, she phoned her again on 25 January and left a voice message but again she received no contact.  She confirmed that she had no further interaction with the Complainant.  She stated that she thought the Complainant would have trusted her and would have had a discussion, even off the record.  She confirmed that she sent an email on 1 February to the Complainant to both her personal and work email in relation to an Occupational Health appointment but that she received no reply.  She sent further details in relation to a second Occupational Health appointment but again received no reply and the Complainant did not attend either appointment.

Cross examination – Manager 2

Manager 2 confirmed that she wasn’t sure of the Complainant’s return to work date, and she confirmed that she had advised the Complainant on certain specifics in the Maternity Leave policy.  She further confirmed that she was not aware of Manager 1’s plans regarding the new role and that it was not relevant to her current role in HR.

The Complainant Representative asked Manager 2 how she could the say that this was a “great opportunity” for the Complainant, to which she replied that this was because the role was within the Marketing Function.  Manager 2 confirmed that the criteria for a position would often be changed in order to attract a wider field of applicants.

Manager 2 agreed that the area of Premium Brands was an attractive place to work and in response to a question as to why such an attractive company would “need to cast as wide a net”, Manager 2 replied that the company was always seeking to employ the best talent.

Manager 2 was asked if she could give another example of where people reported to a level below and not the Director and she replied that her role was supporting function heads on people strategy and so she was not aware.  The Complainant Representative put it to Manager 2 that in that context would she not have expected to have had an input into the plans being made.  Manager 2 stated that she would be involved at the talent acquisition stage, but that the job description would be drafted based on a template.

Manager 2 was asked if it was common practice within the Respondent to retain employees covering maternity leave following the return to work of the person from maternity leave.  Manager 2 said she could not say.  The Complainant Representative asked Manager 2 if the Complainant should have come straight back to the same job and Manager 2 drew attention to the provision in the Maternity Policy which stated that the employee was entitled to go back to their original job and that when taking additional leave, they were entitled to return to an equivalent role.

The Complainant Representative asked Manager 2 where she thought Manager 6 got her information and Manager 2 replied that she assumed it came from Manager 3.  She added that Manager 1 and Manager 3 had been in discussion regarding the role.

CA-00062923-001

I have considered carefully the arguments of both parties, and the case law relied upon by the parties in this regard. 

I noted that this was a complaint under the Terms of Employment Act, 1994 alleging that the Complainant was not notified in writing of a change to her terms of employment and that the narrative in the complaint form related to changes to the Complainant role that arose at the time of her return to work from maternity leave.

Having considered the submissions of the parties and the evidence given at hearing I note that the following matters were not in dispute:

·        That the Complainant was employed as a Premium Spirits Customer Marketing Manager prior to commencement of her maternity leave

·        That she made efforts to contact her manager in relation to her return to work but initially these received no response

·        That she was due to return to work on Monday 22 January 2024 and that she was contacted by phone by her line manager, Manager 1 on Friday 19 January 2024 and advised that the post of Premium Spirits Marketing Manager was to be split into two components: with duties relating to trade marketing for premium spirits and coffee brands to move to a new role of Portfolio Department Lead

·        That this new role would sit within the Marketing Team led by Manager 3

·        That the remainder of the role of Premium Spirits Marketing Manager would continue to be carried out by the employee hired for the maternity cover

·        That a broad outline of the new role was given by Manager 1 during that phone call and that a job description for the role was ultimately emailed to the Complainant at end of business on her first day back at work.

Based on the above I believe the complaint submitted by the Complainant to refer to the change of role outlined above.

Section 3 of the Act states:

“3.—(1) An employer shall, not later than 2 months after the commencement of an employee's employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee's employment, that is to say—

(a) the full names of the employer and the employee,

(b) the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act, 1963),

(c) the place of work or, where there is no fixed or main place of work, a statement specifying that the employee is required or permitted to work at various places,

(d) the title of the job or nature of the work for which the employee is employed,

(e) the date of commencement of the employee's contract of employment,

(f) in the case of a temporary contract of employment, the expected duration thereof or, if the contract of employment is for a fixed term, the date on which the contract expires,

(g) the rate or method of calculation of the employee's remuneration,

(h) the length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval,

(i) any terms or conditions relating to hours of work (including overtime),

(j) any terms or conditions relating to paid leave (other than paid sick leave),

(k) any terms or conditions relating to—

(i) incapacity for work due to sickness or injury and paid sick leave, and

(ii) pensions and pension schemes,

(l) the period of notice which the employee is required to give and entitled to receive (whether by or under statute or under the terms of the employee's contract of employment) to determine the employee's contract of employment or, where this cannot be indicated when the information is given, the method for determining such periods of notice,

(m) a reference to any collective agreements which directly affect the terms and conditions of the employee's employment including, where the employer is not a party to such agreements, particulars of the bodies or institutions by whom they were made.”

Section 5 of the act states:

“5.—(1) Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3, 4 or 6, the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than—

(a) 1 month after the change takes effect, or

(b) where the change is consequent on the employee being required to work outside the State for a period of more than 1 month, the time of the employee's departure.”

Based on the evidence of the parties it is a fact that the proposed change related to the title of the job or nature of the work for which the employee is employed as comprehended by Section 3(1)(d) of the Act and therefore the Respondent was obliged to confirm the details of the relevant changes in accordance with Section 5(1) of the Act.

It is common case that the Respondent did provide the Complainant with a copy of the job description on the first day of her return to work, albeit she had to email him to get it, and it is also clear that the change had not occurred prior to her return. The Act provides for the employer providing notification of the change not later than “1 month after the change takes effect”.  In all of the circumstances outlined I find that this complaint is not well founded.

CA-00062923-003

Preliminary Issue – Amendment to the Complaint Form:

I noted that the Complainant sought to amend the complaint form to include family status as the reason for discrimination contrary to the Employment Equality Act and that she also sought to amend the complaint form to include a complaint of penalisation which is alleged to have occurred upon her return to work for having exercised her entitlement to parental leave. It was proposed that such penalisation case would be adjudicated upon under section 18 of the Parental Leave Act, 1998.

Based on this submission I consider that there are 2 amendments to be considered, and I will address each separately below.  The amendments sought are as follows:

       I.          Amendment to include an additional complaint of discrimination on the ground of family status under Section 77 of the Employment Equality Act, 1998

      II.          Amendment to include an additional complaint of penalisation under Section 18 of the Parental Leave Act, 1998

I have given careful consideration to the arguments of both parties and to the case law relied upon by the parties in this regard. 

It is settled law that the WRC complaint form is a non-statutory form and that a complainant should be permitted to amend his or her original claim where the justice of the case requires it.

It is also settled law that such amendment(s) should be accepted in circumstances where

“the general nature of the complaint remains the same” and where to do so would not permit a party to pursue a cause of action which would otherwise be excluded due to the time limits contained within the relevant legislation.

I.          Amendment to include an additional complaint of discrimination on the ground of family status under Section 77 of the Employment Equality Act, 1998

In the instant case the complaint made by the Complainant was one of discrimination on grounds of her gender and related to events she described as occurring in relation to her return to work from maternity leave. The new complaint was one of discrimination on the ground of family status and was first brought to attention in the Complainant’s submission to the WRC on 20 September 2024.

Having carefully reviewed the narrative contained in the original complaint I noted that it relates almost entirely to what the Complainant described as events that occurred as she returned from maternity leave.  She did not provide any comparator with a different family status, nor did she describe any set of circumstances relating to how she was treated differently to a person with a different family status.  I noted her reference to a male employee returning from parental leave, but it would be safe to assume that such an individual would have the same family status as the Complainant.

I also reviewed the outline submission received by the WRC on 30 September 2024and on 1 October 2024 and while both submissions request the above amendment, again there is no reference to a comparator with different family status to the Complainant and no details are set out as to how the Complainant was treated differently to a person with a different family status.

It is my view that this is a different complaint than that which had been made originally and so I must conclude that the request to amend the complaint form to include the additional ground of family status would be to allow a new complaint be entered.

I noted that the original complaint was received by the WRC on 19 April 2024, therefore the cognisable period is from 19 October 2023 to 18 April 2024.  The request to amend the complaint form was first received by the WRC on 20 September 2024, well outside the cognisable period and no application was made for an extension of time, nor was any reasonable cause for the delay in bringing forward such a complaint made by or on behalf of the Complainant.

In all the circumstances I do not accede to the request for this amendment.

ii.                Amendment to include an additional complaint of penalisation under Section 18 of the Parental Leave Act, 1998

In the instant case the complaint made by the Complainant was one of discrimination on grounds of her gender and related to events she described as occurring in relation to her return to work from maternity leave. The new complaint was one of penalisation under the Parental Leave Act and was first brought to attention in the Complainant’s submission to the WRC on 20 September 2024.

I noted that the original complaint form made no mention of the Complainant returning to work from parental leave, nor did she outline any circumstances where she was treated in a particular manner in relation to having availed of parental leave or identify a specific act of penalisation.  I noted her reference to a male employee returning from parental leave, but this reference was no more than a cursory mention and did not go any way towards outlining any connection or causal linkage between her being on parental leave and any act of penalisation.

I also reviewed the outline submission received by the WRC on 30 September 2024and on 1 October 2024 and while both submissions request the above amendment, again there is no act of penalisation identified nor is there any reference to any causal link between her availing of her rights under the Parental Leave Act and “penalisation” alleged to have occurred.

It is my view that this is a different complaint than that which had been made originally and so I must conclude that the request to amend the complaint form to include a complaint of penalisation under the Parental Leave Act would be to allow a new complaint to be entered.

I noted that the original complaint was received by the WRC on 19 April 2024, therefore the cognisable period is from 19 October 2023 to 18 April 2024.  The request to amend the complaint form was first received by the WRC on 20 September 2024, well outside the cognisable period and no application was made for an extension of time, nor was any reasonable cause for the delay in bringing forward such a complaint made by or on behalf of the Complainant.

In all the circumstances I do not accede to the request for this amendment.

Preliminary Issue – Initial Burden of Proof Under the Employment Equality Act:

The Complainant submitted that she was discriminated against on the basis of gender and that this related to issues regarding her treatment by the Respondent as a result of the fact of her pregnancy as she returned to work from maternity leave.

It is settled law that the onus is on the Claimant to initially establish an arguable case of discrimination before the Respondent is required to disprove that discrimination has taken place.  To this end it is for the Complainant to identify and establish facts of sufficient significance to raise a presumption of discrimination to discharge the initial burden of proof under section 85 A of the Employment Equality Act. 

I noted the Respondent position that the Complainant had not set out such facts.

I further noted the following matters which were not disputed between the parties:

·        That the Complainant was on maternity leave and was due to return to work on Monday 22 January 2024

·        That prior to her maternity leave she had undertaken the role of Premium Spirits Marketing Manager

·        That another staff member (Employee 1) was seconded to cover that role during her maternity leave

·        That she sent a number of emails to her manager, Manager 1, in early January to make arrangements for a call/discussion in relation to her return-to-work arrangements and to bring herself up to speed

·        That Manager 1 did not facilitate such a discussion initially

·        That Manager 1 arranged a phone call with the Complainant for the afternoon of Friday 19 January

·        That on that call Manager 1 advised the Complainant that due to workload pressures a new post of Portfolio Department Lead was to be put in place, that the new role was a great opportunity for the Complainant and that Employee 1 would remain in the post of Premium Spirits Marketing Manager

·        That the Complainant expressed concerns that the new role was a demotion

·        That Manager 1 agreed to provide the Complainant with a job description upon her return to work on Monday 22 January and to arrange meetings to have further discussion

·        That during the morning of Monday 22 Manager 1 did not meet with the Complainant, nor did he provide her with the job description

·        That on the same afternoon during a Teams meeting Manager 1 advised the meeting that the Complainant was taking up the new role

·        That after that meeting the Complainant insisted on a meeting with Manager 1 and again voiced her concerns about the role being a demotion

Having considered these facts I am of the view that the Complainant has proven the primary facts on which she relies in alleging discrimination.  I must, therefore, evaluate those facts and be satisfied that there are matters of sufficient significance in the context of the case as a whole to raise a presumption of discrimination.

I noted the Complainant view that the decision to move her to the new role was a fait accompli and that the new role was, in effect, a demotion.

I noted the alternative position put forward by the Respondent that the new role was not a demotion, was an option put to the Complainant, that the Complainant had agreed to take up the new role and had never asked to remain in the role that remained under the Premium Spirits Marketing Manager and that the changes were necessary due to organisational change.

I will consider these arguments under the following heading:

       I.          Demotion

      II.          A Fait Accompli

    III.          Necessary due to organisational change

(i)               Demotion

I have examined the job descriptions for the role of Premium Spirits Marketing Manager and the role of Portfolio Department Lead as presented to the Complainant and I noted the following:

·        That the rate of pay and grade was the same for both positions

·        That one held the title of Manager while the second was described as a “Lead”

·        That the Portfolio Department Lead did not report to Director level as had been the case for the Premium Spirits Marketing Manager

·        That there was a lower level of experience required for the post of Portfolio Department Lead than that required for the Premium Spirits Marketing Manager

·        That the job description for the Portfolio Department Lead did not refer to a budget being assigned to the role nor to any responsibility for managing a budget

·        That the duties outlined for the Premium Spirits Marketing Manager were more at strategic level and the duties assigned to the Portfolio Department Lead were very much operational

I further noted the position of the Respondent that the structure in the 2 departments was different due to the number of staff in each area and that this was the reason for the new role reporting to a lower level.  I also noted the Respondent position that the Complainant was advised that there would be a budget assigned to the role and that this was evident in the description contained in the job description where it described the post holder as having responsibility from “the end to end”.

While I accept that there were considerably more staff in the second area and that this may well explain why the new position reported to a lower level, however, the fact remains that the new post was reporting to a lower level.  I also accept that the Complainant was advised by Manager 1 that he would ask Employee 1 to assign a small part of the budget from the Premium Spirits Marketing Manager job to the new role.  I formed the view that Manager 1 was “thinking on his feet” when the Complainant raised this matter with him on 22 January and that it was only in the moment that he confirmed that a “small part” of the budget would be assigned.  If the post had been unchanged upon the Complainant’s return, then the Complainant would automatically have gone back to that post and Employee 1 would have departed the scene.  It is not difficult to imagine how offensive Manager 1’s suggestion was that he would ask Employee 1 for a small portion of the budget which had belonged to the Complainant’s substantive position, and I do not accept that there was any real or equivalent budget assigned to the new role.

While the reporting structure was undoubtedly influenced by the size of the Marketing Team, if that was the only difference between the two posts of itself it would not constitute a demotion.  However, when taken in combination with the other differences outlined above it is clear to me that the new post was at a lower level that the Complainant’s post pre maternity leave.

On the basis of the above and in considering the totality of the differences between the roles I must conclude, on the balance of probabilities, that the new post constituted a demotion for the Complainant.

(ii)             A Fait Accompli

I noted the Complainant position that this change was presented to her as a fait accompli and that she clarified this further at hearing by confirming that when first put to her on 19 January she believed it to be open to discussion but that after the Teams meeting on 22 January and upon receipt of the email from Manager 6, she no longer believed she was being given any option. I noted her position that she was being bullied into taking the new role.

I also noted the Respondent alternative position that this change was put to the Complainant as a “proposal” for her consideration, and that it always remained an option for the Complainant to remain in the role she had covered prior to her maternity leave; albeit that role too would change as a consequence of the restructuring.

In considering this matter I took account of the accounts given by the parties of the conversation which took place on the phone call of the afternoon of 19 January.  It is common case that the Manager 1 described the proposed changes and that the position he put to the Complainant was that she would move to the new role.  There is no suggestion that he advised her that she had the option to remain in the revised role of Premium Spirits Marketing Manager. It is also common case that the Complainant raised concerns about the new role.  Manager 1 advised the hearing that the Complainant stated she would “give it a go”, yet the Complainant denied ever making that comment.  The Complainant, on the other hand advised the hearing that she had asked for the job description to be provided and had agreed that there would be further meetings to discuss the role upon her return to work.

On 22 January Manager 1 did not immediately provide the Complainant with the job description for the new role and was not available to meet with her and it is common case that he announced on the Teams meeting that afternoon that the Complainant was moving to the new role and that Employee 1 would remain in the Premium Spirits Marketing Manager role.  The Complainant gave evidence that Manager 1 also advised that meeting that he had advised his own team earlier that morning. It was Manager 1’s evidence that he made the announcement at the Teams meeting on the basis of him having understood that the Complainant had said that she would give the new job “a go” and that he took this to be her acceptance of the role.  It was also his evidence that he had not advised his team nut that Manager 3 and some HR staff were aware of the changes.

It is clear that, in the meeting between the Complainant and Manager 1 immediately after that Teams meeting the Complainant made her concerns about the position, very clear to Manager 1.  I note that Manager 1 did not take any steps to correct his announcement to the participants on the Teams meeting but instead sought to reassure the Complainant that the role would be advantageous for her and confirmed he would send her on the job description. 

The above events were followed soon after by an email from Manager 6 to the Complainant stating that it was her intention to let her team know that the Complainant would be joining them.  She wanted to tell them before they would hear it elsewhere.

In reviewing the submissions of the parties and in considering the testimony given at hearing I was struck by the inconsistencies in Manager 1’s account of events. I noted that in giving evidence Manager 1 stated that on 19 January the plan was for the Complainant to return to work and that a series of meetings would be organised to discuss the role and then a formal offer would be put to the Complainant.  This evidence does not accord with his evidence that he understood the Complainant to have accepted the position when he alleged she said she would “give it ago”; nor does it accord with his evidence that on that basis he announced the plan to the Teams meeting.  Manager 6’s email lends weight to him having been clear on that Teams meeting that the Complainant was moving to the new job and to the fact that others in the organisation were aware of the arrangements.

I noted further that under cross examination Manager 1 stated that he understood that the change was a process” we were working through” and that the parties were still working through it at the time that the Complainant went out sick. He also stated that the presentation of a formal offer to the Complaint would “end the process”.  It does not then appear to be logical that if Manager 1 thought the process was still ongoing and would only end with a formal offer being put to the Complainant  that he felt in a position to announce to the group that the Complainant was taking up the new position/

In the alternative the Complainant evidence in this regard has been consistent throughout and indeed is supported by Manager 1’s evidence that when the met in a one to one on 22 January the Complainant advised him that she had been “blindsided” by his announcement.  This, in my opinion is consistent with her having agreed to consider the position.

On the basis of the above I must conclude, on the balance of probabilities, that Respondent had already decided that the Complainant would move to the new role upon her return from maternity leave and that there was no intention to provide her with options.  In that context I conclude that the change of role was, in fact, a fait accompli.

(iii)            Necessary due to organisational change

I noted the Respondent position that the change being implemented was due to organisational change and were not personal to the Complainant.  I accept that the Respondent had identified a need for additional staff to support the Premium Spirits workload.  I also accept that the proposal to split the work of the Premium Spirits Marketing Manager arose from a proposal aimed at addressing the workload concerns and I accept that it is valid for an employer to make changes in such circumstances. 

I noted the Complainant position that that it was personal to her that she was being moved upon her return from maternity leave.  In that regard I am conscious that Manager 1 pointed out in his evidence that it was always open to the Complainant to remain in the revised Premium Spirits role but that she never indicated that she wished to do so.

I have considered the evidence of the parties in relation to this matter carefully and I noted that the Complainant accepted that there was a need to address the workload issues in her substantive area.   I also noted that there was no suggestion by the Complainant that she asked to remain in the Premium Spirits Marketing Manager role.  I also noted that in all the evidence given by Manager 1 he never described suggesting to the Complainant that she might wish to remain in that position.  Despite the Complainant raising concerns with him on 19 January and 22 January about the new role he did not make any mention of her having the option to remain in her revised old role.  In fact, he advised her that Employee 1 would be taking over.  I am of the view that, as the manager, it was for him to set out clearly what, if any, options were available to the Complainant, and he did not do so.  This leads me to conclude that there was only one option available to her.

Based on the above, while I accept that the need for the additional role came about because of organisational requirements, there was no requirement to put the Complainant in that new role.  In addition, the workload issues giving rise to the change had existed for a number of years and even after the Complainant left the Respondent employ, the new post was only in the process of being filled at the time of the hearing.  This leads me to conclude that there was also no immediate imperative to make any change to the Complainant role upon her return from maternity leave.

In summary and as outlined above I have concluded as follows:

·        that the move to the new post constituted a demotion for the Complainant

·        that Respondent had already decided that the Complainant would move to the new role upon her return from maternity leave and that there was no intention to provide her with options

·        that the change of role was, in fact, a fait accompli

·        that there was no organisation imperative or requirement to put the Complainant in that new role

·        that there was no immediate imperative to make any change to the Complainant role upon her return from maternity leave

Based on the above conclusions I am satisfied that the Complainant has raised facts of sufficient significance to raise a presumption of discrimination. 

It is established law that the mere fact of pregnancy is sufficient to shift the burden of proof over to the employer once the Complainant has established a prima facie case of less favourable treatment.

In all of the circumstances described I am satisfied that the Complainant has established a prima facie case to meet the requirements of section 85(A) of the Act.

The Substantive Case

I have already concluded:

·        that the move to the new post constituted a demotion for the Complainant

·        that the Respondent had already decided that the Complainant would move to the new role upon her return from maternity leave and that there was no intention to provide her with options

·        that the change of role was, in fact, a fait accompli

·        that there was no business imperative or requirement to put the Complainant in that new role

·        that there was no immediate imperative to make any change to the Complainant role upon her return from maternity leave

In reaching those conclusions I have considered the arguments put forward by the Respondent in defence of its position.  

I consider it necessary to also make comment on the conduct and the language used by Manager 1 throughout the process and, indeed, at hearing as follows:

·        The very first reason put forward by him to explain the need for the new role related to the impact of the Complainant’s two maternity leaves and only later did he give evidence that there were general workload issues for a number of years. 

·        He presented the Complainant with his proposal to move to the new job but never suggested that she be afforded any option to remain in her current role.

·        He placed the responsibility on the Complainant to ask to remain in her substantive role, failing to recognise that she had legal entitlements upon her return to work from maternity leave

·        He advised her that Employee 1 would remain in that role. 

·        He told the Teams meeting that the Complainant was taking up the new role without having provided her with the job description, and without having held the discussion meetings he had told her would take place.

·        He continued to move forward with the plan, despite the Complainant raising her concerns directly with him.

·        He described the Complainants reaction as “an emotional response” twice during his evidence at hearing rather than treating her concerns seriously

I was left in no doubt that the impact of this sequence of events on the Complainant as she returned from maternity leave exacerbated the sense of not being “welcomed back” to her substantive role and left her with a sense of being “forced out”.

Taking all of the above into account I have concluded that the Complainant was discriminated against on the ground of gender by not being returned to her position following maternity leave as set out in Section 26 of the Maternity Protection Acts and by her being demoted by the Respondent.

Anonymisation of the Decision

In finalising this case I considered the Supreme Court judgement in An Bord Banistíochta, Gaelscoil Moshíológ and the Labour Court and Aoghahán Ó’Súird and the Department of Education 2024 IESC 38 (“O’Súird”). Having reviewed that judgement, I am cognisant of the position set out by the Chief Justice at paragraph 75:

 “It is important for any person adjudicating and whose decisions are published, to recognise that without anonymisation of parties, findings made on the balance of probabilities, and sometimes limited evidence, may often be treated as definitive judgments on individuals and will have a considerable half-life and the damage done to reputations can be spread very far, and persist for some time.”

The above wording was not considered as part of a direct discussion at the hearing on the issue of anonymisation, but instead concerns the issue of decision-makers being appropriately limited and focused in their decisions. However, these comments did bring me to the conclusion that in the circumstances of this case I should anonymise the details of the parties.

CA-00062923-001

I have found that this complaint is not well founded, and I decide accordingly.

CA-00062923-003

I have found that the Complainant was discriminated against on the ground of gender by not being returned to her position following maternity leave as set out in Section 26 of the Maternity Protection Acts and by her being demoted by the Respondent and I therefore decide that this complaint is well founded. 

Section 82 of the EEA provides that the maximum amount which may be ordered by way of compensation is two years’ remuneration.  The EEA is derived from the following EU Directives: 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation; 2006/54/EC of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast); and 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial and ethnic origin. Therefore, the Von Colson Principles apply, and any award must provide a real deterrent against future infractions.  

In deciding on an award of compensation in respect of this complaint, I noted that the Complainant was in receipt of basic salary was €68,113.55 plus bonuses and other contributions.  In all the circumstances I direct the Respondent to pay the amount of €68,000 to the Complainant as compensation for the discrimination.