Complainant

Respondent

Parties

Rebecca Murphy

Dublin City University (DCU)

Representatives

Nicola Coleman SIPTU

Laura Kerin IBEC

Act

Complaint Reference No.

Date of Receipt

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

CA-00063699-001

24/05/2024

The Complainant is alleging that she was discriminated against and harassed by the respondent on grounds of gender and family status. The Complaint Form was lodged with the WRC on 24 May 2024.

The Complainant submits that the respondent failed to notify her of a vacancy for a permanent position in her department which the Respondent advertised when the complainant was on maternity leave.

The Complainant states that the Respondent has several comprehensive policies in place and have also been successful in achieving an Athena Swan award. However the complainant states that in this instance, the Respondent has failed to implement its gender equity policies which include the Equality and Access Policy and the Vacancy Advertising Policy.

It was submitted that when the Complainant took issue with the respondent for failing to implement these policies, rather than acknowledge and accept this, they gaslighted her and sent her emails that referred to her frustration and her need for clarity and painted a narrative that the reason she missed out on the opportunity was her own fault.

The Complainant maintains that the Respondent further discriminated against her by amending a maternity leave template letter in a manner that would render the protections in the Equality Access Policy and Vacancy Policy nugatory and would penalise a staff member including the Complainant in the future.

Background

The Complainant is employed in a temporary position of Assistant Professor in the School of Nursing, Psychotherapy & Community Health. The Complainant was on maternity leave for 8 months from June 2023 to March 2024. The Complainant asserts that on 13 October 2023, she sent an email to the Head of School stating; “I am currently planning my return to work from maternity leave in the new year. I would like to enquire about the discretionary process in taking parental leave as one day a week for a certain amount of time. Your guidance and advice on applying for this, the relevant procedures and of course feasibility of it is greatly appreciated.”

On 19 October, the Head of School replied; “would you mind making an appointment through the Head Office to meet with me to discuss.” The Complainant states that on 3 November 2023, she and the Head of School had a meeting on Zoom to discuss the return to work and the Complainant’s wish to avail of parental leave on a one day a week basis. The Complainant states that on 8 November, just five days after this meeting, the Respondent advertised a permanent post for Assistant Professor in Community/Digital Health. The Complainant states that the Head of School neglected to inform her of this vacancy when they met with her on 3 November. The Complainant asserts that given the provisions in the Vacancy Policy that “All job advertisements are agreed between the Human Resources Office and the Head of School/Unit”, they certainly would have been aware of it when that meeting took place.

The Complainant states that on 4 March, she met with the Head of School to plan her workload ahead of returning from maternity leave. The Complainant maintains that the Head of School informed her that a new Assistant Professor of Community Health, a male, would be starting very soon. The Complainant states that this was the first time she (who was on a temporary contract) learned of a vacancy for a permanent post. When she asked when was it advertised, the Head of School replied “within the last 6 months”. The Complainant states that on 4 March, soon after meeting with the Head of School, she emailed the HR Generalist and asked “is an employing department required to notify employees of new vacancies they are eligible to apply for which arise whilst that employee is on maternity leave”.

The HR Generalist emailed and stated that she herself receives an email every Friday with the jobs that the Respondent advertises and states that she will ask the HR Business Partner to link in with the Complainant because she “cannot find anything regarding these queries on the maternity leave policy.”  The Complainant states that she replied referring to the Vacancy Advertising Policy which states “Staff on parental leave, leave of absence or sabbatical leave will, where possible, be informed of relevant vacancies by the Head of School.” 

The Complainant states that on Tuesday 5 March, the HR Business Partner emailed her noting her query and requests “are you available to take a call tomorrow at any stage to discuss this further”. The Complainant states that during that call, the Complainant gave examples that it was entirely possible for her to be contacted and provided examples, including the fact that she had received three texts, one asking for her address so as they could send flowers on the arrival of her daughter and two other texts, one asking could they use her office for another staff member while she was on leave and another arranging to get a new key cut for same.

The Complainant states that she also told the Respondent about the Zoom meeting with the Head of School that took place on 3 November 2024 just days prior to the public advertisement. The Complainant outlined how permanent posts do not come up very often in her field and how important the opportunity to apply would have been to her. The Complainant asserts that HR stated that they understood and that they would find out what happened and revert.

The Complainant states that on 11 March, the HR Business Partner emailed stating “Just to follow on from our call, I understand your frustration with regard to not being made aware of the job opportunity that was advertised when you were on leave, however there would be an obligation on employees while on any leave type to familiarise themselves with the vacancies advertised within the University” and “Given the high volume of vacancies throughout each school and faculty, it is not always possible for line managers to reach out to employees who are on leave. I hope this provides you with further clarity.”     

The Complainant states that she replied to this stating that in her opinion this directly conflicts with the University’s gender equity policies and with the Employment Equality Act and that it was also “to be quite frank, laughable given the school’s recent Athena Swann Award.” The Complainant states that on 23 May 2024, she received an email from the HR Service Delivery Manager stating that the HR Team “have updated our maternity and adoptive leave template letters on foot of your email and as part of our process improvement initiatives”.. “The revised letters now clearly set out that employees should check the DCU website for vacancies given the high volume of roles which could be advertised in the University at any given time. We trust that this will make it clearer at the outset to employees going out on maternity leave or adoptive leave”.

The Complainant states that she replied to this email stating “I am appalled that you have used my feedback to further double down in your policy statements and push back the responsibility onto employees on parental leave and maternity leave. My feedback was to encourage you to uphold equity policies and practices, not double down against them. I will be reaching out to the Workplace Relations Commission for further advice on this.”

The Complainant asserts that she has been discriminated against on grounds of gender and family status contrary to the provisions of section 6 of the Acts. She further submits that she has been subjected to harassment on grounds of gender and family status contrary to the provisions of section 14 (a) subsection 7 of the Acts.

The Complainant submits that the Respondent neglected to inform her of the vacancy for the permanent post when she was on maternity leave despite the fact that its policy committed them to doing so. The Complainant submits that it was possible to contact her in line with that policy and that she had all the required skills and qualifications. She further states that the Head of School had contacted her about other matters immediately prior to the post being advertised.

The Complainant states that she has established a prima facie case of discrimination on grounds of her gender and family status. The Complainant states that the Respondent failed to respond to her statutory request for information (EE.2 Form) and has provided no credible explanation other than discrimination on gender and family status, as to why the Head of School did not inform her of the vacancy during their meeting on 3 November just five days prior to the post being advertised. She states that the post remained open for applicants until 29 November 2023 but despite this, at no stage did the Head of School contact her to let her know. The Complainant asserts that this was unwanted conduct that had the purpose/effect of violating her dignity and creating an intimidating, hostile humiliating environment for her and is harassment contrary to section 14 of the Acts. The Complainant contends that the date of alleged discrimination is 29 November 2023 the date that the post closed for applicants.

The Complainant maintains that the Respondent neglected to inform her of a vacancy for the permanent post immediately after she informed it that she intended to avail of parental leave. The Complainant states that she wrote to Head of School on 13 October stating that she intended to apply for parental leave and received a response on 19 October to arrange a meeting to discuss which took place on 3 November. On 8 November, just five days later, the permanent post of Assistant Professor of Community Health was advertised. Despite the fact that in line with the Vacancy Policy; the Head of School would have oversight of the advertisement for the permanent post and would have been acutely aware of the Complainant’s suitability for the role, in terms of qualifications, skills and relevant experience, they omitted to inform her about the role. The Complainant submits that she has established a prima facie case of discrimination on grounds of gender and family status. The Complainant further alleges that this conduct constitutes harassment contrary to section 14 of the Acts.  The date of the alleged discrimination regarding this complaint is 3 November 2023.

The Complainant states that when she complained, the Respondent failed to acknowledge that it had not complied with the Complainant’s rights under the Act and firmly put the blame on her for missing the opportunity to apply for the post. The Complainant asserts that this gaslighting occurred in the face of clear evidence presented to HR that the policies to ensure gender equity were not followed. The Complainant states that on 11 March, the HR Business Partner referred to the Complainant’s “frustration”. The Complainant states that the Respondent failed to acknowledge or make any reference to the relevant section of Vacancy Policy that the Complainant was entitled to rely on, to be told of a vacancy when on maternity leave. Instead HR “provide clarity” to the Complainant and advise her that there is an obligation on employees on “any type of leave” to familiarise themselves with the vacancies advertised within the University. The Complainant submits that the Respondent completely disregarded its own policy and the positive actions contained therein to ensure equitable treatment of the Complainant when she was on maternity leave.

The Complainant states that it was eminently possible for the Head of School to inform her of the vacancy in the Zoom meeting that took place just five days prior to that vacancy being advertised.

The Complainant cites the caselaw in Louise Kinsella v Irish Prison Service (ADJ 00013612) in support of her complaint. It was submitted that in this case it was confirmed that the period of maternity leave is a protected period and that the failure to offer the Complainant access opportunities for promotion constituted  discrimination on the grounds of gender and the Respondent was ordered to pay the Complainant €15,000 compensation and additionally, a direction that staff on maternity leave are to be notified of future promotional opportunities.

The Complainant states that in an organisation such as the Respondent, which employs significant numbers of staff, there is an onus to ensure that training is delivered to all senior managers and staff to ensure the monitoring of and implementation of policies thereby ensuring their effectiveness.

The Complainant states that the Respondent could have taken positive action in this case. The Complainant asserts that in the age of modern technology and communications, an automated email, text or even a letter could be sent to a staff member registered as being on maternity leave.

The Respondent asserts that the Complainant alleges that in failing to have her Head of School personally inform her of a vacancy that occurred while she was on her maternity leave, that she was directly discriminated against by the Respondent. It was submitted that the Complainant added fresh allegations in addition to the above via her submission to the WRC on 13 November 2024, as follows:

“Complaint 3 (a) The Respondent neglected to inform the Complainant of the vacancy for the permanent post when she was on maternity leave despite the fact that their policy committed them to doing so, that it was possible to contact the Complainant in line with that policy, that the Complainant had all of the required skills and qualifications and that the Head of School had contacted her about other matters, immediately prior to the post being advertised.”

“Complaint 3 (b): The Respondent neglected to inform the Complainant of a vacancy for the permanent post immediately after she informed them that she intended to avail of paternity leave.”

“Complaint 3 (c): That when she complained, the Respondent failed to acknowledge that they had not complied with her rights under Act and firmly put the blame on her for missing the opportunity to apply for the post. This gaslighting occurred in the face of clear evidence, presented to HR that the policies to ensure gender equity, were not followed.”

“Complaint 3 (d): The Respondent emailed the Complainant on the 23 May 2024 stating that they would change the maternity leave letter. These changes would effectively remove any expectation that anyone, including the Complainant might have, that they would be protected by the Equality and Access Policy, the Vacancy Policy and that their right to equal treatment under the Acts.”

The Respondent refutes the employment equality claim in its entirety. The Respondent contends that there are no such discriminatory practices taking place in the University. It is the Respondent’s contention that the Complainant was made aware of ongoing vacancies that occurred during her Maternity Leave via an email which issues to all staff every Friday which was also publicly advertised and accessible to the public on their website. Therefore, no discrimination as alleged has occurred, as the Complainant was provided with the same opportunity to view and apply for the position as all other staff.

TheRespondent contends thattheComplainanthasfailedto establish a prima facie case of discrimination, as she has not defined any less favourable treatment, nor has she provided any relevant comparator nor any causal link between any allegedmistreatmentandhergenderorfamilystatus.

Preliminary matter 1: Additional Complaints Entered

The substantive allegation outlined in the complaint form is that the Respondent failed to inform the Complainant of a vacancy which arose while she was on maternity leave. In addition, the last date of discrimination has been defined in the claim form as 29 November 2023.  However, the Complainant’s representative has expanded the complaints submitted as part of this claim via their submission to the WRC on 13 November 2024.The submission contains additional allegations which substantively alter the claim as outlined in the complaint form, including:

●        That failing to inform the Complainant of the relevant vacancy while on her maternity leave was an act of harassment, with an alleged date of discrimination on 29 November 2023.

●        That the Respondent discriminated against the Complainant in neglecting to inform the Complainant of a vacancy for the permanent post immediately after she informed them that she intended to avail of Parental Leave, with a new alleged date of discrimination on 3 November 2023. Additionally, it was added that this was an act of harassment.

●        An allegation that the Respondent directly discriminated against her ‘when she complained the Respondent failed to acknowledge that they had not complied with her rights under Act and firmly put the blame on her for missing the opportunity to apply for the post. This gaslighting occurred in the face of clear evidence, presented to HR that the policies to ensure gender equity, were not followed.’, with a new alleged date of discrimination on 11 March 2023. Additionally, it was added that this was an act of harassment.

●        An allegation that amending the Maternity Leave letter was an act of both discrimination and harassment, with a new date of discrimination on 23 May 2023.

The Respondent contends that the case of County Louth VEC v The Equality Tribunal IEHC 370 isfrequentlycitedas the authority for the proposition that as a non-mandatory or non-statutory administrative form, a change to the form can be made.  The Respondent acceptsthattheWRCcomplaintformisnotastatutorybasedform and it should be permissible to amend the complaint “where the justice of the case requiresit”…“aslongasthegeneralnatureofthecomplaintremainsthesame”. However,the Respondentsubmitsthatinthewithincase,thejusticeofthecasedoes notrequireit.

The Respondent states that the claim was defined in the complaint form and that no reference was made to any allegation of harassment, nor was there any issue outlined with regards to any amendments made to the maternity leave letter, nor any alleged incident of discrimination occurring after 29 November 2023. The complainant completed this claim form while being represented and on the advice and guidance of her trade union. The Respondent asserts that the Complainant was at no time disadvantaged nor can it be described in any way that she was for the purposes of the hearing a “lay litigant”. The Respondent further states that no case to “amend proceedings” or to provide “further and better particulars” has been referred to the WRC.

The Respondent asserts that the information submitted by the Complainant’s representative does not constitute “further and better particulars” that clarify the original issue outlined in the complaint form. The original complaint, as noted above, was that the Respondent failed to notify the Complainant of a vacancy that arose during her maternity leave. Instead, the Respondent argues that these are new complaints involving fresh allegations of harassment and discrimination, which purportedly occurred after the last date of alleged discrimination noted in the complaint form as 29 November 2023. These are new allegations submitted via the Complainant’s submission on 13 November 2024. This, the Respondent contends, represents an attempt to substantially amend and expand the scope of the current claim. The general nature of the complaint as per the claim form would be drastically altered and could not be said to remain the same.

The Respondent disputes the inclusion of these additional allegations, as they attempt to substantially alter the substantive claim before the WRC. Therefore, the Respondent contends that they are not properly before the WRC, as they were not included or alluded to in the original claim form.

Preliminary Matter 2: Out of Time

The Respondent submits that this claim (CA-00063699) with respect to the Employment Equality Act is out of time. In her WRC Claim Form, the Complainant alleges that the last date of discrimination occurred on 29 November 2023. However, it is the Respondent’s contention that the last date of any alleged discrimination was the date upon which the Complainant felt she should have been informed of the relevant vacancy by her head of school, as this forms the substantive allegation as set out in the claim form and submissions. This date would be the 3 November 2023, i.e. the date of the alleged contravention, as per the Complaint’s submissions, which time and time again refers back to this allegation: “The Head of School neglected to inform the Complainant of this vacancy when they met with her on November 3rd . Given the provisions in the Vacancy Policy, that “All job advertisements are agreed between the Human Resources Office and the Head of School/Unit.”, they most certainly would have been aware of it when that meeting took place.”

“Complaint 3 (a) The Respondent neglected to inform the Complainant of the vacancy for the permanent post when she was on maternity leave …and that the Head of School had contacted her about other matters, immediately prior to the post being advertised.”

“The Respondent failed to respond to the Complainant’s statutory request for information (form E.E.2.) and has provided no credible explanation as to why the Head of School did not inform her of the vacancy during their meeting on November 3rd, just five days prior to the post being advertised.”

“Complaint 3 (b): The Respondent neglected to inform the Complainant of a vacancy for the permanent post immediately after she informed them that she intended to avail of Parental Leave…That meeting took place on the 3rd of November.”

“Furthermore they completely ignored the fact that it was eminently possible for the Head of School to inform the Complainant of the vacancy in the Zoom meeting that took place just 5 days prior to that vacancy being advertised.”

It is the Respondent’s contention that the matter crystalised on 3 November 2023, when the Complainant felt she should have been informed by her head of school of the upcoming vacancy. The Complainant submitted her complaint to the Workplace Relations Commission on 24 May 2024.

Section 77 (6A) of the Acts provide: “For the purposes of this section (a) discrimination or victimisation occurs –(i) if the act constituting it extends over a period, at the end of the period”.

In Cork VEC v Hurley EDA 24/2011, the Labour Court stated: “Occurrences outside the time limit could only be considered if the last act relied upon was within the time limit and the other acts complained of were sufficiently connected to the final act so as to make them all part of a continuum”.

The Respondent therefore contends that the last act relied upon is the meeting of the 3 November 2023, as the substantive issue is that she was not informed of the vacancy at this meeting, and further, that this act does not then extend over a period of time. Therefore, as per Cork VEC v Hurley, such an occurrence outside the time limit could not be considered as the last act relied upon is outside of the 6 month time limit. Therefore, the Respondent respectfully submits that this claim is out of time and consequently, the Adjudication Officer does not have jurisdiction to hear this complaint as the matter is statute barred.

Section 77 of the Employment Equality Act states the following:‘5) (a) Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.

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

Similarly, Section 41(6) of the Workplace Relations Act, 2015 provides; “Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates”.

Whilst Section 41(8) of the Workplace Relations Act 2015 provides that the six-month time limit should apply and that it can only be extended due to ‘’reasonable cause’’; the Respondent submitted that as the within complaint is manifestly out of time and no application has been made to extend this time, the matter is statute barred.

The Respondent states that the tests applied by the Labour Court for extensions of time under the Organisation of Working Time Act (and other legislation with the same wording) have been well established. The respondent cites the case of Cementation Skanska v Carroll, DWT033, where the Court articulated the test by stating: “It is the Court’s view that in considering if reasonable cause exists, it is for the Complainant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the Complainant at the material time. The Complainant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the Complainant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.” ………….

“The length of the delay should be taken into account. A short delay may require only a slight explanation whereas a long delay may require more cogent reasons. Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time. Here the Court should consider if the respondent has suffered prejudice by the delay and should also consider if the complainant has a good arguable case.” The Court’s explanation in Cementation Skanska, drew heavily from the High Court case of O’Donnell v Dun Laoghaire Corporation [1991] ILRM 30, where Costello J held that the test is an objective one and pointed out that a Court should not extend a statutory time limit merely because the applicant subjectively believed that he or she was justified in delaying the institution of proceedings. Costello J stated: “The phrase 'good reason' is one of wide import which it would be futile to attempt to define precisely. However, in considering whether or not there are good reasons for extending the time I think it is clear that the test must be an objective one and the Court should not extend the time merely because an aggrieved plaintiff believed he/she was justified in delaying the institution of proceedings. What the plaintiff has to show (and I think the onus is on the plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay”.

Preliminary matter 3: Same Set of Facts

It is the Respondent’s position that the Complainant has made no differentiation between her allegations of discrimination in getting a job, discrimination in promoting her, nor discrimination in her conditions of employment. Similarly, she has made no differentiation between her allegations that she was discriminated against on the grounds of gender / family status under any of these categories. In effect, the Complainant is seeking to rely on the same set of facts, and the same series of events, to substantiate her claims of discrimination for both gender and family status, with respect to each of the allegations set out in the complaint form.

Background

The Complainant commenced employment with the Respondent as an Assistant Professor on 3 October 2022 on a three-year fixed term in the School of Nursing, Psychotherapy and Community Health. The Complainant commenced her maternity leave on the 19 June 2023 which ended on 1 March 2024.

On 19 October 2023, during her maternity leave arrangement, the Complainant wrote to the Head of School in the School of Nursing, Psychotherapy and Community Health, requesting an appointment to meet and discuss the Complainant’s request for discretionary parental leave. On 3 November 2023, the Complainant met with the Head of School via Zoom to discuss her discretionary parental leave arrangement.

A permanent Assistant Professor in Community Health position was advertised from 8 – 29 November 2023 on the publicly accessible DCU external vacancies website. This position was at the same level as the Complainant’s current role, and at the same salary scale. An all-staff vacancies email was sent on the 10 November 2023 notifying staff to their staff emails, of the advertised vacancies for week commencing 6 November 2023, including the Assistant Professor in Community Health Position.

On 1 March 2024 the Complainant returned from Maternity Leave. On the 4 of March 2024, the Complainant emailed her HR Business Partner and queried whether the employing department are required to notify employees of vacancies that arise whilst on maternity leave. The Complainant met with the HR Business Partner via Zoom on 6 March 2024 to discuss and understand the query. The HR Business Partner noted she would come back to the Complainant to formally clarify.

It was submitted that on 11 March 2024, the HR Business Partner emailed the Complainant and clarified that due to the high volume of vacancies throughout each school and faculty, it is not always possible for line managers to reach out to employees, the practice is that there would be an obligation on employees while on any leave to familiarise themselves with the vacancies advertised in the university. In response, the Complainant outlined her dissatisfaction with the respondent’s position and noted that they would engage with SIPTU on the matter. No further correspondence in relation to same was received from the Complainant subsequent to this communication. On 25 March 2024, a probationary meeting was held with the Complainant, and Head of Department, during which no matter or complaint pertaining to the relevant vacancy were raised.

The Respondent states that on 23 May 2024, in response to the Complainant’s dissatisfaction with the communication regarding open vacancies and in line with ongoing continuous improvement processes, the HR Service Delivery Manager  informed the Complainant by email of an addition to the maternity leave correspondence stemming from the matter raised by the Complainant. This addition includes a revised maternity leave letter, which now advises staff to regularly check the DCU website for vacancies, acknowledging the high volume of roles that may be advertised at any time within the University. The Respondent states that based on the issue raised by the Complainant, it was clear there was a gap in terms of alignment of expectation and practice, and therefore the correspondence was amended to provide greater clarity, enhance communications, and promote fairness and accessibility in line with a commitment to continuous improvement.

The Respondent submits that in her submission, the Complainant has provided fresh allegations subsequent to that of her complaint form.

The Respondent submits that the Complainant has provided no evidence of less favourable treatment within the cognisable period of the claim. The Complainant has alleged that the Respondent has discriminated against her in failing to notify her of a vacancy that arose while she was on maternity leave. She further alleges that the Complainant did not adhere to its policy statement, which the Respondent understands to be its Vacancy Advertising Policy, which states that those on protected leave ‘where possible, be informed of relevant vacancies by the Head of School/Unit’. This advertising policy stated the following:

“Staff on Parental Leave, Leave of Absence or Sabbatical Leave will, where possible, be informed of relevant vacancies by the Head of School/Unit.”

In addition, the Respondent understands that the Complainant takes issue with an alleged non-adherence to their Equality and Access policy.

The Respondent contends that this does not amount to less favourable treatment, as the Complainant is not being treated less favourably than any other individual within the University. The Respondent notified the Complainant of the vacancy via an email sent on 10 November 2023. The Respondent ensures compliance with its Equality and Access Policy and Advertising Policy through consistent application of recruitment processes and standard communication methods, including weekly vacancy emails to all staff and public advertisements accessible to everyone. These mechanisms provide equitable access to information about vacancies for all employees, including those on protected leave. The policy's discretionary language, such as "where possible," for those on Parental leave, leave of absence or sabbatical leave, allows for flexibility in application, ensuring practicality while maintaining fairness. The Respondent reiterates that this does not constitute less favourable treatment.

It was submitted that the Complainant’s representative has sought to rely on caselaw relating to Louise Kinsella Vs Irish Prison Services (ADJ 00013612) in establishing a prima facie case. However, the Respondent would contest the use of such a case, as the facts of this case are not comparable to the instant claim. The Respondent states that in that case,it was found that the Complainant was not informed of vacancies that arose during her maternity leave. This occurred, in part, because the vacancies were notified to all staff through an internal email, which the Complainant had no access to during her leave. However, in the present claim, the Complainant was informed of the relevant vacancy via the weekly internal Friday notification email, which she had access to during her leave.

The Respondent further states that the Complainant has failed to identify any relevant comparator to whom she was treated less favourably than on the grounds cited by her as required under section 6 (1)(a) of the Acts. It was submitted that in Bolger, Bruton, Kimber; Employment Equality Law 2nd Ed. 2022:

“The need for a comparator [2-181] In general, a complainant must prove less favourable treatment as compared with another person in a similar position to the complainant. Therefore, without a comparator, the claim will fail, and the choice of comparator is of significant importance to the success of any claim. However, this does not apply to allegations of pregnancy-related discriminatory treatment where the law in general accepts a hypothetical non-pregnant comparator.”

The Respondent asserts that no such hypothetical comparator has been provided by the Complainant. It states that notwithstanding this, the Complainant has not been treated in a manner less favourable than any individual who was not pregnant or on maternity leave. The Complainant has been treated in the same manner as all other staff.

The Respondent notes that the Complainant has referenced the male employee who was successful in applying for the relevant vacancy, stating that this ‘has relevance and gives weight to her complaint’…’the Complainant had in fact been disadvantaged and treated less favourably than another who was NOT on maternity leave’. The Respondent states that this employee, Mr X, is not an appropriate comparator for this claim, as he was an external candidate. As such, Mr X did not have the benefit of access to the weekly internal Friday notification email alerting staff to vacancies as the Complainant did. Instead, he had only the Respondent’s website and public advertisements for notification of the vacancy. Therefore, as the Complainant was an employee of the Respondent, she was treated more favourably than Mr X in terms of notification of this vacancy.

The Respondent contends that no comparator has been provided for the purpose of establishing a prima facie case with respect to discrimination on the grounds of family status. However, without prejudice to this point, the Respondent contends that Mr X would not be appropriate for use as a comparator in relation to his family status, as his family status is not known to the Respondent.

The Respondent disputes that any harassment as defined in the legislation has occurred. It states that for a complaint of harassment under the Employment Equality Acts to be made out, the Complainant must demonstrate a link between the alleged treatment and the discriminatory ground. It further states that she has failed to establish a complaint of harassment under the Act.

The Respondent states that it is a public body, and is therefore required to implement a clear and transparent recruitment process for any vacancy that becomes available within the organisation. This vacancy was advertised for open and public recruitment between 8 November and 29 November 2023. The vacancy was published on the Respondent’s website, and an email was sent to staff notifying them of this vacancy, alongside all other new vacancies since 6 November, on 10 November. This is in line with the standard procedure across the University for notifying staff of available positions. The Complainant had access to the University website during the time that she was on her Maternity Leave. In addition, she had access to her work email address to which the vacancy email was sent during her Maternity Leave.

The Respondent strongly contests any allegation that the Complainant was not notified of the vacancy. In terms of the allegation that the Complainant was not directly notified of the vacancy by her Head of School, as per the policy statement, the Respondent contends that there is no requirement for the Respondent to do so, and that the policy states that such a measure will be done ‘where possible’. While the policy encourages Heads of School to notify staff on protected leave "where possible," this is not a mandatory obligation, recognising that practical challenges may arise. Failure to adhere to this policy, especially in the instance where it is a conditional requirement applicable where possible, does not in itself constitute discrimination under the Act. The Respondent asserts that the relevant clause in the Vacancy Policy permits positive action. However, it provides flexibility where required in making the provision ‘where possible’. The Respondent acknowledges that section 33 of the Employment Equality Act permits positive action. However, it contends that a lack of positive action where the option for such is conditionally provided does not in itself constitute discrimination.

The Respondent states that it was not possible for the Head of School to personally inform the Complainant of such a vacancy so as to ensure fair and consistent application of this “positive action” for all potential staff, irrespective of leave type across the University who may be appropriate for the role. The Respondent states that the Complainant received notification of the vacancy during her period of leave in the same manner as all other individuals.

The Respondent states that it has a total cohort of over 2,500 and therefore maintains a high volume of vacancies throughout the year. It states that in 2023, 481 roles were advertised; due to this volume it is not feasible for management to individually inform each staff member on leave or otherwise of every vacancy. The Respondent states that the Head of School does not verbally or personally inform any employee of relevant vacancies which arise, to avoid the creation of an unfair advantage to any individual, regardless of their circumstances and in recognition of the practical limitations so as to ensure that this positive action could be consistently applied in all instances.  

The Respondent acknowledges that staff on protected leave are not required to monitor their emails however due to the nature of academia, if they wish, staff have the option of retaining access to their emails subject to them carrying out the necessary cyber security training. It states that this provides staff on protected leave the additional option to visit the publicly accessible website, to stay informed of both potential academic or research opportunities if they wish. The Respondent notes that the Complainant maintained access to her emails throughout the period of maternity leave and can confirm that the relevant cyber security training was completed.

The Respondent states that the Complainant never raised any complaint of harassment nor did the Complainant, at any time, submit a complaint of harassment under the Dignity at Work Policy.

The issues for decision in the within complaint are whether (i) the Complainant was discriminated against on grounds of gender and family status and (ii) the Complainant was subjected to harassment contrary to section 14 of the Act.

Section 85A(1) of the Act provides as follows in relation to the burden of proof on a Complainant who alleges discriminatory treatment contrary to the Act:

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

The Labour Court, in its determination in Southern Health Board v Mitchell [2001] ELR 201,  considered the extent of the evidential burden imposed on a Complainant by section 85A and held:

“The first requirement is that the claimant 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 claimant must prove, on the balance of probabilities, 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.”

It follows that a Complainant has to establish both the primary facts upon which he or she relies and also that those facts are of sufficient significance to raise an inference of discrimination. In Cork City Council v McCarthy EDA 21/2008, the Labour Court stated in this regard:

“The type or range of facts which may be relied upon by a Complainant may vary significantly from case to case. The law provides that the probative burden shifts where a Complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference or presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.”

In Melbury Developments Ltd. v Valpeters [2010] ELR 64 the Court stated that “mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”.

Based on the evidence heard, I note that the Complainant was notified by the Respondent of ongoing vacancies that occurred during her maternity leave via an email which issues to all staff every Friday which was also publicly advertised and accessible to the public on their website.

I note that the Complainant was notified of the vacancy in question in the within matter via email on 10 November 2023. The Respondent submitted that this is in line with the manner in which vacancies are notified as a standard process across the Respondent University.

I note the evidence of the Respondent that the Head of School does not verbally or personally inform any employee of relevant vacancies which arise, to avoid the creation of an unfair advantage to any individual, regardless of their circumstances.

I accept the point made by the Respondent that given the high volume of vacancies throughout each school and faculty, it is not always possible for line managers to reach out to employees and the practice is that there is an obligation on employees while on any leave to familiarise themselves with the vacancies advertised in the University. The Respondent stated that in 2023 for example, 481 roles were advertised across the University. It states that given this volume  there are significant difficulties for the Respondent to be in a position to individually inform or personally inform each member of staff on leave/protected leave of vacancies.

The Respondent submitted at the hearing that staff on protected leave are not required to monitor their emails but that due to the nature of academia, if they wish, staff have the option of retaining access to their emails subject to them carrying out the necessary cyber security training. It was submitted that the Complainant maintained access to her emails throughout her maternity period and had completed the relevant cyber security training.

Based on all of the foregoing, I find that the Complainant has not established that she was subjected to less favourable treatment on grounds of gender and family status, in that, the Complainant was provided with the same opportunity to view and apply for vacancies as all other staff.

Having carefully examined all of the evidence adduced in the within matter, I find that the Complainant has not established a prima facie case of discrimination on the gender and family status grounds. The Complainant has not demonstrated a nexus between the alleged treatment and her gender and family status. I further find that the Complainant has not presented any evidence from which I could reasonably conclude that she was subjected to harassment within the meaning of section 14 A of the Act.

I find that the Complainant was not discriminated against by the Respondent on grounds of gender or family status.

I find that the Complainant was not subjected to harassment contrary to section 14 of the Act.

Employment Equality Acts, gender, family status, harassment