Complainant

Respondent

Parties

Arlene  Reynolds

Scalapay Limited Scalapay

Complainant

Respondent

Anonymised Parties

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Representatives

Setanta Landers Setanta Solicitors

Bird & Bird LLP

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00066793-001

18/10/2024

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

CA-00066793-002

18/10/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 30 and 31 of the Maternity Protection Act 1994

CA-00066793-003

18/10/2024

The Complainant commenced her employment with the respondent on 21 July 2021. Her role as per her contract of employment Chief Operations Officer.

The Complainants employment  was terminated on 19 August 2024 citing redundancy as the reason for same.

The complainant has submitted claims of discrimination on grounds of gender and family status as well as a claim of  victimisation in respect of her dismissal by the respondent which took place on her return from maternity leave. The complainant has also submitted a claim under the Maternity Protection Act.

The Complainant submits that she was dismissed on her return from maternity leave and that she  was put through an artificial and unfair redundancy process immediately upon her return from maternity leave when she refused to leave voluntarily prior to commencing maternity leave. The Complainant submits that this amounts to  discrimination on  the grounds of gender and family status due to pregnancy .

The Complainant submits that she was not allowed to return to her role or duties on her return from maternity leave

The Complainant submits that she commenced her employment on 21 July 2021. Her role was Head of International and Operations (Chief Operations Officer) The Complainant was dismissed on 19 August 2024.

 The Complainant became pregnant with her first child and commenced maternity leave in or around May 2022. She returned to work after her maternity leave in or around January 2023.

The Complainant became pregnant with her second child and informed the Respondent of this pregnancy in or around July 2023.    On or around 1 December 2023, the Respondent approached the Complainant with a potential proposal to mutually terminate her employment

On 1 December 2023, the Complainant had a call with Ms Luisa Corvino (Ms. L), Chief People Officer and Mr. Simone Mancini (Mr. S) , CEO of the respondent company. During this call, it was suggested that the Complainant would need to re-locate to Milan to continue in her role.

On or around the 4 December 2023, Ms. L emailed the Complainant in relation to the meeting held on 1 December 2023 stated that no decision about the team basecamp would be made prior to the Complainant commencing maternity leave or before her return.

 On 5 December 2023, the Complainant had a call with Mr S in relation to the proposed compromise agreement. Mr S indicated that the Complainant’s options were to re-locate to Milan or exit the company.

An exit package was proposed to the Complainant.  In reference to the figure proposed by the Respondent, the complainant submits that Mr S stated that the proposed figure was higher than the Respondent would ordinarily offer given that she was about to commence maternity leave.

 The Complainant submits that she asked if the discussions would be happening if she was not about to commence maternity leave. Mr S stated that the conversation was not related to her maternity leave. The Complainant submits that she asked whether he would be having a conversation with her male colleague based in Spain about relocating and Mr S said not yet.

The Complainant informed the Respondent that she wished to return to her existing role following her maternity leave.  The Complainant commenced her maternity leave on 2 January 2024 and  returned from maternity leave on the 26 July 2024.

The complainant submits that a meeting took place on her return date in which Mr S informed the Complainant  that her role was at risk of redundancy, and that she would not be required to undertake any work during the consultation process.

The Complainant received a letter from Mr S on the 27 July 2024 which stated that her role was at risk of redundancy as her role of Chief Operations Officer was being removed and would be performed by the team in Milan.

The letter stated that the Respondent had been unable to identify any suitable alternatives or current vacancies to redundancy and  invited the Complainant to a consultation meeting with Mr S on the 31 July 2024.

The Complainant attended a consultation meeting on the 31 July 2024 with Mr S.  and a further meeting took place on 6 August 2024.

The Complainant emailed Mr S and Ms. L on the 6 August 2024 following this meeting, expressing concerns about the timing of the redundancy process, the lack of clarity surrounding the reason for the purported restructuring and why she had been selected for redundancy.

Mr S responded by email of 7 August 2024, stating that the redundancy had not been finalised, that the Chief Operations Officer role was moving to Milan, that he believed the Complainant understood the reasons for the redundancy. Mr S stated that alternatives to redundancy should be proposed by the Complainant.

 A further meeting was held on 9 August 2024 with Ms L and Mr S, where the Complainant re-iterated her concerns.  The complainant was advised that the respondent no longer had any employees based in Ireland and so had no need for a COO based in Ireland.

A google meets call was held on 19 August 2024 and the Complainant was informed at this meeting that she was being made redundant confirmed by letter of same date.

 By letter dated the 27 August 2024, the solicitors for the Complainant wrote to the Respondent to appeal the Complainant’s termination.

 On 23 September 2024, the solicitors for the Complainant emailed Mr S and Ms. L to seek a formal outcome to the appeal.    A feedback document was sent on 10 October and an appeal outcome issued on 23 October 2024. The appeal was not upheld.

The complainant submits that she was discriminated against on grounds of gender and family status when she was made redundant following her return form Maternity leave.

The complainant submits that she was victimised for raising concerns about discrimination.

The complainant also submits that the respondent breached the Maternity Protection Act 1994 ,by not allowing her to return to work  on the expiry of her maternity leave.

The respondent submit that the Irish company, was incorporated in Ireland on 8 February 2019. The company leased short-term office space through a rental agreement  This is the office of the company’s accountants,

The respondent submits that the Complainant reached out to Mr. Simone Mancini (Mr. S) , CEO of the respondent company  on LinkedIn expressing interest in working for The Company.   The respondent advised the hearing  that following this the complainant was hired in July 2021 and held the role of Chief Operations Officer. 

The respondent submits that  the complainant took maternity leave from May to November 2022, returning in January 2023 during which time she received enhanced maternity benefits despite not meeting the policy’s minimum 2 years’ service requirement.

The respondent submits that  between 2022 and 2023, a major change happened within the Company Group which was that it acquired a regulated payment entity in Italy (a payment institution) .  The respondent submit that  the regulatory requirements surrounding this led to consolidation of operations in Milan. 

The respondent submits that company’s leadership and operational teams were increasingly based in Milan and  The Irish office was wound down; and no employees remained in Ireland by 2023 apart from the complainant.

The process to acquire that company took almost one year between the summer of 2022 and spring of 2023. The transaction closed in March 2023.

 The respondent submits when The Company started to operate the regulated entity in Italy, it needed a stronger operations department and management of the operations of the regulated entity as there are a lot of rules and provisions which are specifically applicable to regulated entities in Italy.  In Italy regulated entities are subject to the supervision of the Bank of Italy.

 The respondent submits a decision was made to consolidate operations in Milan due to regulatory and operational needs.

The respondent submits  that by this stage the company headquarters was based in Italy, the CEO of the group was based in Italy, and the majority of the management is based in Italy (and was based in Italy at that time).

The Respondent denies the allegations of discrimination on the grounds of gender and family status, as well as claims of victimisation and procedural unfairness.

The respondent submits that the Complainant’s dismissal was the result of a genuine redundancy process, carried out in accordance with employment law and internal procedures.

The Complainant was employed as Chief Operations Officer.   Her employment transferred to the Respondent under TUPE on 1 January 2022.  She commenced her second maternity leave on 2 January 2024 and returned on 26 July 2024.

 The respondent submits on return, she was informed that her role was at risk of redundancy due to restructuring.

The respondent submits that it undertook a strategic review of its operations, resulting in the centralization of core functions in Milan.   The respondent submits that the COO role was identified as no longer required in Ireland.   No replacement was appointed; the duties were absorbed by the Milan-based team.   The redundancy was not selective or targeted at the Complainant personally.

The Complainant was invited to consultation meetings and given the opportunity to propose alternatives. 

The respondent submits that the Complainant’s reference to male colleagues is not valid for comparison as these roles differ materially in function, scope, and strategic relevance.   No other employee was retained in Ireland.

 The Complainant was afforded the right to appeal the redundancy decision.   The appeal was reviewed internally and responded to in writing.   The outcome was based on business needs and restructuring rationale.

The Respondent did not treat the Complainant less favourably due to her pregnancy or family status.

The respondent submits that ddiscussions regarding relocation and exit packages were part of broader restructuring efforts of which the complainant was aware of and had been involved in effecting the redundancies of 35 other employees in 2023.

The dismissal was a result of a genuine redundancy. No discrimination or victimisation occurred. The process was fair, transparent, and legally compliant.

The respondent submits that upon the complainant’s return to work in January 2023, following her first maternity leave, there were  discussions about her relocating in whole or in part to Milan due to the business’s operational needs.

 A number of changes were happening in the business during this period. In early 2023, The Company Group implemented a restructuring programme in order to cut costs across its businesses in Europe.

The Complainant had returned from her first maternity leave at this time and was directly involved in implementing the changes, including the removal of approximately 35 roles. From within the company wherein employees were offered incentivised redundancy packages.

 The respondent stated that as early as February 2023, Mr S and the Complainant had started discussing the inefficiencies in the organisational setup in Ireland and the challenges of being separated from the office where her team was based (i.e., in Milan), from the perspective of a possible move of the Complainant to Milan.

 The respondent submits that the Complainant initially showed willingness to relocate but later resisted the proposed relocation package of €10,000.

The respondent submits that Informal discussions about voluntary termination of the complainant employment and a proposed exit package began in late 2023 during which the Complainant suggested using a WRC claim route for tax-free compensation, which the company rejected as illegal.

The respondent submits that  upon return from her maternity leave in July 2024, a consultation process began regarding redundancy.

Four meetings were held; initially, the complainant accepted the rationale but later raised objections.      The COO role was eliminated and its responsibilities redistributed.

Final redundancy decision communicated on 19 August 2024, with an appeal process that upheld the decision.

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

CA-00066793-001

18/10/2024

The Employment Equality Act 1998 prohibits discrimination as between any two persons in employment on the following nine grounds as contained in Section 6 (2) of the Act as follows:

(a)    That one is a woman and the other is a man (in this Act referred to as “the gender ground”).

(c)     That one has family status and the other does not (in this Act referred to as “the family status ground”).

Section 6 (2 A) provides.

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

Section 85A (1) of the Act provides: -

85A.—(1) Where in any proceeding’s 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.

It is clear from Section 85A (1) of the Act above that the burden of proof is on the Complainant. If the case meets the threshold set out above, then the burden of proof shifts and it is on the Respondent to rebut the presumption of discrimination.

This view is consistent with the decision of the Labour Court in Mitchell v. Southern Health Board [2001] ELR 201, where it was held thar:

“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.”

 In A Company v A Worker,  the Labour Court stated:

“Once an employee has shown that she has been dismissed or discriminated against, under the Burden of Proof Directive, the onus switches to the employer to show that such dismissal or discrimination was on exceptional grounds not associated with her pregnancy and such grounds, in the case of dismissal, as a matter of law and in the case of discrimination as a matter of good practice should be set out in writing.”

It is well established that the existence of the pregnancy itself is sufficient to shift the burden of proof to the employer to prove that a dismissal of a pregnant employee was not on grounds of the pregnancy. This can be seen in Trailer Care Holdings Ltd v Healy,  where the Labour Court stated:

“in every case in which pregnancy related dismissal is in issue, the factual combination of the dismissal and the woman’s pregnancy must, in and of itself, place the onus of proving the absence of discrimination firmly on the respondent”.

The Complainant advised the hearing that she commenced her employment on 21 July 2021 and was dismissed on 19 August 2024 following her return from her second maternity leave and the reason cited for her dismissal was redundancy.

The complainant stated that her  role was Chief Operations Officer.   The complainant in her submissions disputes the assertion that there was a redundancy situation and submits that she was dismissed during the protected period on her return from her second maternity leave and that this amounts to a discriminatory dismissal.     

The complainant  in her evidence to the hearing advised the hearing that the potential redundancy of her role had been discussed with her prior to her maternity leave back in November 2023.  The complainant also stated that she had been instrumental in facilitating the redundancies of 35 other staff as part of a restructuring and cost cutting program embarked on by the respondent in preparation for  becoming a regulated payment entity under the Bank of Italy.   The complainant advised the hearing that the narrative in November regarding her own role was that she would have to either relocate to Milan or else her role would be redundant.

The respondent advised the hearing that the complainant’s position was redundant and that the complainant had herself been instrumental in effecting the redundancies of 35 other employees in the period prior to her maternity leave as part of an overall restructuring exercise across the organisation.   The respondent advised the hearing that it no longer has any employees left in Ireland and that a decision had been made to locate the company headquarters in Milan following the purchase of a regulated payment entity in Italy which resulted in the company being subjected to regulation by the Bank of Italy.

The respondent advised the hearing that  between 2022 and 2023, a major change happened within the Company Group which was that it acquired a regulated payment entity in Italy (a payment institution) .  The respondent stated that  the regulatory requirements surrounding this led to consolidation of operations in Milan. 

The respondent advised the hearing that the company’s leadership and operational teams were increasingly based in Milan and  The Irish office was wound down; and no employees remained in Ireland by 2024 apart from the complainant.

The respondent advised the hearing that once the Company started to operate the regulated entity in Italy, it needed a stronger operations department and management of the operations of the regulated entity as there are a lot of rules and provisions which are specifically applicable to regulated entities in Italy.  In Italy regulated entities are subject to the supervision of the Bank of Italy.

The respondent submits a decision was made to consolidate operations in Milan due to regulatory and operational needs.

The respondent advised the hearing that  the complainant had been asked a number of times since February 2023  to relocate to Milan as that was the centre of the respondent’s operations.

 The respondent advised the hearing that the complainant had initially been considering moving to Milan and she had asked for the numbers involved in a proposed relocation package.  The respondent stated that the complainant was offered €10,000 as an incentive to relocate but that she had stated that this was not enough and so had turned it down and refused to relocate.

The respondent stated that the complainant had been asked to relocate prior to her pregnancy and maternity leave.   The respondent advised the hearing that  the complainant was well aware that her role in Ireland was no longer viable.  The respondent advised the hearing that by the time the complainant had returned from her second maternity leave the COO role was redundant and the company no longer had any employees left in Ireland.  The respondent advised the hearing that no other employees remained in Ireland and that the Irish office is no longer in operation.

The complainant disputes that the COO role was no longer required stating that the role had been divided out among other staff in Milan .  The respondent did not dispute this stating that the requirement was for the Chief Operation officer to be based in Milan with the rest of the team.  The respondent stated that it had put this to the complainant a number of times which she had refused.

The respondent stated that it had also previously in 2023 offered the complainant an exit package when it became clear that she was unwilling to relocate to Milan and that the exit package offered was for an amount of €72,000.  

The respondent advised the hearing that the complainant initially considered this offer but once she realised that any tax liability in relation to same would lie with her she decided to refuse the offer.

The respondent advised the hearing that the complainant had instead suggested to the respondent at that time that another option would be to leverage the WRC to avoid the tax liability. 

 The respondent advised the hearing that the complainant had suggested that she could send a solicitor’s letter to the respondent threatening to make a complaint to of discrimination to  the WRC and that the company could then move to settle and any settlement could be paid on a tax-free basis as a settlement .   The respondent stated that the complainant had told them that equality dismissal claims are paid out without a tax burden.   The respondent provided copies of text messages from the complainant outlining this suggestion.

 The respondent advised the hearing that it had looked into this but had ultimately refused to go along with this suggestion as it was illegal.  The complainant disputed this stating that the respondent refused to go along with it as they thought her case would be too strong.

The respondent advised the hearing that the complainant had  become pregnant with her first child and commenced maternity leave in or around May 2022 and  returned to work after her maternity leave in or around January 2023.    The respondent advised the hearing that it had been very supportive of the complainant and had paid her 100% of her salary during her maternity leave despite her not having the required 2 years’ service to warrant this entitlement.  The respondent advised the hearing  that the Complainant became pregnant with her second child and informed the Respondent of this pregnancy in or around July 2023.    The respondent advised the hearing that it had  prior to her maternity leave approached the Complainant with a potential proposal to mutually terminate her employment given that she was unwilling or unable to relocate to Milan and given the changing operational and regulatory environment the company was now in being regulated by the Bank of Italy..

The complainant advised the hearing  that on 1 December 2023, she had a call with Ms. L, Chief People Officer and Mr S, CEO. and that during this call, it was again suggested that the Complainant would need to re-locate to Milan to continue in her role.    The Complainant advised the hearing that she had indicated that other senior members of staff, the Chief Risk Officer, who was currently located in Spain, and the co-founder and Chief Technical Officer, who was located in Australia, were not being asked to re-locate to Milan.    The respondent at the hearing denied that the complainant raised an issue in respect of other managers at this time but states that in any event they were completely different roles and also the managers in question were employed and working in the same locations as their teams.

The complainant advised the hearing that on or around the 5 December 2023, the Complainant had a call with Mr S in relation to a proposed compromise agreement.  She stated that Mr S indicated at the time that the Complainant’s options were to re-locate to Milan or exit the company.   The respondent at the hearing denied that relocation was discussed again at this meeting as Mr. S told the hearing that the complainant had already made it very clear that she was not willing to relocate to Milan.    Mr. S stated that they had asked the complainant on at least three if not four occasions prior to this  to relocate to Milan due to the needs of the business, but she had refused.

Both parties agree that an exit package was proposed to the Complainant prior to her second maternity leave.   In reference to the figure proposed by the Respondent, the complainant advised the hearing that Mr S made explicit reference to the Complainant’s maternity leave and had stated that the proposed figure was higher than the Respondent would ordinarily offer given that she was about to commence maternity leave.

The Respondent does not deny this but stated that once the complainant indicated that she wished to remain with the company for the period of her maternity leave they accepted this and did not pressure her.

The Complainant stated that she had at the time asked the respondent if the discussions would be happening if she was not about to commence maternity leave.  Mr S stated that the conversation was not in any way related to her maternity leave. The Complainant stated that she had asked whether he would be having a conversation with her male colleague based in Spain about re locating and Mr S said not yet.

The Complainant advised the hearing that she informed the Respondent that she wished to return to her role following her maternity leave.

The Complainant advised the hearing that she commenced her maternity leave on 2 January 2024 and returned from maternity leave on the 26 July 2024. A meeting was scheduled for the day she returned from maternity leave with Mr S in which Mr S informed the Complainant that her role was at risk of redundancy, and that she would not be required to undertake any work but could instead spend her time preparing for the consultation process.

The Complainant advised the hearing that she received a letter to this effect on the 27 July 2024 which stated that her role was at risk of redundancy as the role of Chief Operations Officer was being removed and would be performed by the team in Milan.

The complainant advised the hearing that the letter stated that the Complainant was not required to perform her duties during the consultation process.  The letter invited the Complainant to a consultation meeting with Mr S on the 31 July 2024.  The Complainant advised the hearing that she attended a consultation meeting on the 31 July 2024 with Mr S.  and that no alternatives to redundancy were proposed by the Respondent.  A further meeting took place on 6 August 2024. . The Complainant advised the hearing that she emailed Mr S and Ms. L on the 6 August 2024 following this meeting, expressing concerns about the timing of the redundancy process, the lack of clarity surrounding the reason for the purported restructuring and why she had been selected for redundancy . 

The Complainant advised the hearing that Mr S responded by email of 7 August 2024, stating that the Chief Operations Officer role was moving to Milan, that he believed the Complainant understood the reasons for the redundancy. Mr S stated that alternatives to redundancy should be proposed by the Complainant.     The Complainant advised the hearing that a further meeting was held on 9 August 2024 with Ms L and Mr S, where the Complainant re-iterated her concerns.

The complainant advised the hearing a google meets call was held on 19 August 2024 she was informed at this meeting that she was being made redundant. . The complainant received a letter dated 19 August 2024 confirming her termination.

The Complainant advised the hearing that she appealed the decision, but the appeal was not upheld.  The complainant advised the hearing that she had asked for the appeal to be heard by an independent appeals officer but that this did not happen.  The complainant told the hearing that  the appeal had been dealt with by a co-owner of the company Mr. Johnny Mitrevski (Mr. J) who was known to the complainant.  The complainant advised the hearing that she had previously reported to Mr. J and that she had had a good working relationship with him.   

The Complainant advised the hearing that she had been 8 months pregnant in December 2023 and about to commence her maternity leave when she was first approached by the Respondent to exit the company.

The respondent at the hearing denied this and stated that the complainant was first asked in February 2023 to relocate to Milan and the respondent advised the hearing that this came up on several occasions after that to the point where the complainant had enquired of the respondent about compensation for the move and requested to be provided with the numbers involved in any proposed relocation package.

The respondent advised the hearing that the complainant ultimately refused the relocation package as she deemed that eh amount being offered was not enough .  The respondent advised the hearing that the complainant was also asked to be more present in Milan to meet the business needs which she initially agreed to do but later stated that availability of flights between Ireland Milan would prevent her from attending in Milan more regularly.

The respondent advised the hearing that the acquisition of a regulated payment entity in Italy and the ensuing regulation of the company by the Bank of Italy meant that it needed a stronger operations department and management of the operations of the regulated entity as there are a lot of rules and provisions which are specifically applicable to regulated entities in Italy.  In Italy regulated entities are subject to the supervision of the Bank of Italy.

The respondent advised the hearing that the fact that the complainant was not based in Italy and did not speak Italian presented difficulties in this regard.  

The complainant in this case disputes that there was a genuine redundancy situation however I note that the complainant had previously been in discussions with the respondent about an exit package and had even made suggestions as to how the tax element of the proposed package could be managed.

In considering this matter I note the respondent position that the complainant’s role was no longer required in Ireland and that its headquarters was located in Milan and also that it had no other employees left in Ireland.  I note also that the complainant had been asked a number of times to relocate to Milan as part of the changing business requirements following the acquisition of a regulated payments entity which was regulated by the Bank of Italy .   I also note that the complainant had engaged in this process and in discussions around her potential relocation and the remuneration package involved before ultimately deciding to refuse the package and the relocation. 

I am mindful that discussions around the relocation of the complainant’s role to Milan had been taking place as far  back as February 2023.

I also note that both parties agree that the complainant was instrumental in effecting the redundancies of 35 other employees as part of the company’s restructuring.

I note that the complainant was aware and involved in discussion around the relocation of her role as far back as February 2023 and that having refused to relocation I note that discussions moved towards agreeing an exit package for the complainant.

I note that the complainant had engaged in these discussions up to December 2023 at which point she advised the respondent that she would instead remain in her role and would be commencing her maternity leave in January 2024.  It seems clear that In the discussions predating that, the complainant was considering the terms of what, had it proceeded, would have been an agreed exit, but that agreement was not reached and  the employment continued.

The respondent’s position is that as early as February 2023 the organizational requirements already called for senior duties to be carried out in Milan. However, since April 2024 (after obtaining the PI license), the needs in Milan became even more pressing due to the need to comply with the Italian regulatory framework.  I note that the complainant in her evidence to the hearing acknowledged that  she was aware of the difficulty caused by the COO role being located in Ireland when the company was based in Milan.

It appears  from the evidence adduced that the respondent then found itself in a position where the role was no longer required in Ireland, but the incumbent of the role  was not willing to relocate to Milan where the role and team were based.   I also note that the respondent attempted to agree an exit package with the complainant when it became clear that she was unwilling or unable to relocate to Milan but  that the timing of these exit discussions coincided with the complainants disclosure of her second pregnancy and associated maternity leave and so the respondent had paused the exit discussions once the complainant advised that she would be taking her maternity leave from January 2024 and wished to return to her role after her maternity leave.

I also note that the complainant in her submissions referred to the redundancy as a summary dismissal but that she was  paid all of her entitlements including notice and so there was no summary dismissal.    The complainant at the hearing confirmed that she had received her redundancy payment on 4th of October 2024.

In examining this matter, I note that the complainant seeks to rely on the proximity of the redundancy to the protected period in support of her claim of discrimination, but I am satisfied from the evidence adduced that that respondent has justified the redundancy and has provided convincing evidence that a genuine redundancy situation existed.   

 It also appears from the evidence adduced that the respondent in this case kept the complainant on for a longer period due to the fact that she was pregnant and due to commence her maternity leave however an employer cannot be expected to keep an employee on indefinitely after their role is redundant purely due to the fact that she has just returned from maternity leave especially given the circumstances which existed prior to that maternity leave where the parties had engaged in discussions around relocation and then around an exit strategy.

I note that the complainant in this case has submitted that there were certain flaws in the redundancy process and how it was handled and while I acknowledge that the redundancy process was not perfect I also note that I am not dealing with a claim under the Redundancy Payments Act but I am dealing with claim of discriminatory dismissal.    And while I acknowledge that the redundancy process engaged by the respondent was not perfect  I cannot  conclude that a flawed redundancy process automatically points to or equates to discrimination.  

Accordingly, having considered the totality of the evidence adduced in relation to this matter I am satisfied that the complainant in this case was not subjected to a discriminatory dismissal and that the respondent did not discriminate against the complainant on the grounds of gender and or family status.

I am satisfied from the totality of the evidence adduced that the complainant was not discriminated against by the respondent on grounds of gender and or family status in respect of her dismissal.

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

CA-00066793-002

18/10/2024

Section 74(2) of the Acts provides:

 For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to—

(a) a complaint of discrimination made by the employee to the employer,

(b) any proceedings by a complainant,

(c) an employee having represented or otherwise supported a complainant,

(d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,

(e) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,

(f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000, or which was unlawful or any such repealed enactment, or

(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.

The key elements of victimisation provided for in section 74(2) of the Acts can be summarised as follows:

·       The employee had taken action of a type referred to at section 74(2) of the Acts

·       The employee was subjected to adverse treatment by the Respondent, and

·       The adverse treatment was in reaction to the protected action having been taken by the employee.

·       There must be a causal connection between the taking of proceedings and any alleged treatment by the employer.

I have already made a finding in respect of the dismissal in the related claim referenced CA-00066793-001 wherein the complainant had submitted that her dismissal amounted to discrimination on grounds of gender and or family status.   I note that the complainant in submitting this claim of victimisation is submitting that her selection for redundancy and dismissal amounts to adverse treatment on foot of a protected Act.

The complainant in support of her claim of victimisation submits  that she had queried in a call on 1st of December 2023 whether the offer of an exit package by the respondent was linked to her maternity leave.  The respondent denied that any such issue was raised stating that no conversation regarding relocating took place during this conversation as relocation to Milan had  already been discussed and ruled out by the complainant.  

In addition, the complainant submits that she raised an issue during her  redundancy consultation meetings that “The same redundancy proceedings and alternatives had not been presented to a male comparator in Spain or Australia.”

The Complainant submits that she was then victimised for raising these issues when she was put through an artificial redundancy process and ultimately dismissed.

In order for a Complainant to succeed in a victimisation claim they must prove that they experienced adverse treatment by the Respondent and that the adverse treatment was solely or mainly because she partook in any of the above actions listed a-g.

I am satisfied from the evidence adduced that the Complainant in the present case has failed to demonstrate that she committed a protected act as prescribed under section 74 (2) or that she has suffered adverse treatment as a result of any such protected act.

 Accordingly, I am satisfied that the  complainant has failed to establish that she was victimised by the respondent as per the definition of victimisation within the Employment Equality acts.   I am satisfied from the totality of the evidence adduced that this does not amount to victimisation of the complainant by the respondent contrary to section 74(2) of the EEA.

I am satisfied from the totality of the evidence adduced that the complainant was not victimised by the respondent as per the definition of victimisation within the Employment Equality act.

Complaint seeking adjudication by the Workplace Relations Commission under Section 30 and 31 of the Maternity Protection Act 1994

CA-00066793-003

18/10/2024

The Complainant submits that she was not allowed to return to her role or her duties on her return from maternity leave and was informed by letter dated 26 July 2024 that she was not to carry out her duties and that her role was at risk of redundancy. The Complainant was ultimately dismissed by reason of redundancy and was not allowed return to her role as Chief Operations Officer.

Part V of the Maternity Protection Act 1994 sets out the procedure for the resolution of disputes and the redress available where an adjudicator finds that an employee has not been permitted to avail of her entitlements under the Act. However, section 30 provides that Part V does not apply in circumstances where an employee is dismissed.   In this instant case, the Complainant was dismissed and has lodged a related claim under the Employment Equality Acts alleging that she was discriminated against on grounds of gender and family status by the respondent in respect of her dismissal.  

I am satisfied that his matter is dealt with in the related decision in respect of the complainant’s dismissal i.e. CA-00066793-001.  Accordingly,  I declare this claim to be not well founded.

For the reasons cited, I  declare this claim to be not well founded.