The complainant’s maternity leave was due to expire on 1 January 2011. She informed her supervisor of her intention to return but never complied with the statutory requirement to inform her employer in writing. The respondent acknowledged that the complainant’s return to work was facilitated in February 2011 following a phone call from an advocate of the complainant indicating the complainant’s intention to take legal action if her return to work was not facilitated. The Equality Officer found that this delay in facilitating the complainant’s return to work, even in the absence of the statutorily required notification, was discriminatory on the gender ground.

In looking at the loss of earnings for the gap between maternity leave and return to work the Equality Officer found that compensation was not paid but made no finding in respect of this. Rather, it was indicated it would be considered when awarding redress. The complainant indicated that she could no longer work mornings and this was facilitated by a move to another location and the working of evenings only. The Equality Officer found that the consequential reduction of the
complainant’s working hours was not discriminatory.

The manager of the new location was instructed to issue a new contract to all new staff and he issued one to the complainant who alleged that this amounted to a dismissal and reengagement of her even though it appears that the new terms were not applied to her. The Equality Officer did not agree and found that the manager’s action was not discriminatory. The complainant had also alleged discrimination on the grounds of race and family status but these were not supported with any evidence and were not upheld. Her allegations of victimisation due to the dismissal of her son were likewise not upheld.

The Equality Officer, after consideration of the key victimisation case Barret v Department of Defence EDA1017, found that the complainant’s threat of legal action amounted to a protect act but that the dismissal of her son did not amount to adverse treatment of the complainant herself. In addition, there was no link between his dismissal and the complainant’s protected Act. The complainant was awarded €4,000.

Why is this case of interest?

This case suggests that a technical breach of statutory requirements may still be held against an employer and it remains to be seen whether this is accepted generally. It appears that a technical breach by a complainant can result in an employer being liable.

To view the full case decision:
http://www.workplacerelations.ie/en/Cases/2014/December/DEC-E2014-086.html