MPD162 - HSE v Rabbitte

Issues: Maternity protection, entitlement to return to job when maternity leave ends, responsibility to identify appropriate duties

This Labour Court determination is made in accordance with the maternity protection provisions but is of interest because a considerable number of equality cases relation to maternity issues also include reference to the role the employee returns to following maternity leave.  In this case, the employee was working as a grade III but was told by her manager that she was actually working as a grade IV and that she, the manager, would seek to have the employee’s position regarded whenever embargos were lifted.  Due to the nature of the work, it was reassigned to another location while the complainant was on maternity leave.  Prior to her return the complainant sought clarity as to what role she would return to and she was keen to ensure her entitlement to an upgrade would be protected.  Backlog work was assigned to her but this was likely to last only six to seven weeks.  Having unsuccessfully sought information as to what role she would hold after the backlog was cleared the complainant was unable to cope with the lack of information and certainty the complainant commenced this claim.

The respondent argued that she had returned on the same contract and the same terms and conditions of employment, that it had gone to considerable lengths to identify alternative suitable work but the complainant had failed to submit a definitive list of duties she was prepared to undertake which would protect her entitlement to be upgraded.

The Court found that the complainant was employed on grade IV work before her maternity leave and was entitled to return to that job after her maternity leave ended.  The Court accepted the employer’s willingness to accommodate the complainant but found it had unintentionally failed to assign her appropriate work.  “Assigning her appropriate work is the responsibility of the employer.  It is not her responsibility to identify duties that she could undertake.”

Why is this case of interest?

Employers, no matter how willing to accommodate employees returning from protected leave, are required to assign appropriate work and it is not the responsibility of the employee to identify that work.  Presumably, the returning employee must accept the assigned work as equivalent in all respects to what she was doing prior to the commencement of the leave.


DEC-E2016-066 - Ms. A v A Social Enterprise

Issues: Gender, access to employment, selection process, vicarious liability

The complainant is a highly qualified mediator, trainer, facilitator and life-skills coach who applied for a position of life planning coordinator with an organisation for suicide prevention.  The selection process appears to have been multi-tiered but the complainant was invited to an interactive meeting with users.  After the meeting, she received a call from Mr. A (a consultant working with the prospective employer and the architect of the process used by the organisation with users) who had been at the meeting in the guise of a user.  She alleged he told her that how she dressed for such meetings was important, that he preferred women to dress less formally.  He allegedly went on to say he didn’t know if she could get down and dirty with the men and the complainant alleged he repeated this comment on another occasion.  The complainant’s perception was that he was attempting to dissuade her from the position and he made it clear he was the main influencer as to who would get the job.

Following this first meeting, there were two candidates remaining, the complainant and another male candidate.  Mr. A proceeded to ‘mentor’ the candidates.  Under the heading of Equality Officer’s Conclusions, in sections 4.9 and 4.10 new evidence is introduced not presented under either the complainant or respondent evidence.  However, it appears the complainant alleged that Mr. A asked to meet for coffee and that she initially agreed.  Subsequently, in light of his comments about getting down and dirty with the men she felt this entire call was sinister.  A subsequent facilitation with users took place which the complainant found the most humiliating experience of her professional life.  Ultimately the male candidate was awarded the position.

The Equality Officer found as follows:

Overall, I am satisfied from the totality of the evidence before me that under the guise of “mentoring” both candidates, Mr. A. set out to undermine the complainant’s professional confidence to such an extent that she would not succeed at the second facilitation, and that he very much did so in a gender-based way and also for gender-based reasons, that is, preferring her male competitor. Given that the respondent accepts that it delegated the mentoring task to Mr. A. – even though the relevant people in the respondent organisation may not have anticipated his actions, and in particular Ms. B. may have sadly misplaced her trust in him – it remains vicariously liable for his treatment of the complainant. The complainant is therefore entitled to succeed.

The complainant was awarded €13,000 the Equality Officer stating this was the maximum he could award in the circumstances, an access to employment claim.


DEC-E2016-088 An Employee (RK) v A Health Services Employer

Issues: disability, failure to provide reasonable accommodation, reinstatement and the difference in pay in the relevant period as compensation

The complainant was employed as a grade V and on a panel awaiting appointment to a grade VII.  She applied for a local grade VII post and was successfully appointed in an acting capacity.  She experienced considerable difficulties due to her disability particularly due to the dispersed holding of relevant files and difficulties reaching the photocopier combined with the substantial amount of photocopying required for the post.  The employer believed it had provided appropriate accommodation in a ground floor office, adapting a desk etc.  Considerable correspondence appears to have been presented and the Equality Officer found that the respondent had adopted “a lethargic reaction in response to her requests to have the office routines of the ANO role examined either from a business point of view of a disability perspective”.

The complainant was returned to her original grade V.  The Equality Officer refers to the Unfair Dismissals Act saying that the letter of 11 June 2014 should have “been set aside as an almost “Constructive Dismissal resignation letter”.  A possible interpretation of this is that the complainant was saying she could not continue in the overall circumstances.  There followed a meeting that was “in effect to deliver what appeared to be an ultimatum in relation to transferring back to the Grade V position”.  It appears that the Equality Officer has found that the complainant was given an ultimatum to return to her former role.  However, no further consideration of this as direct discrimination on the disability ground is included and indeed, although this was an allegation no finding is made in this regard in the Decision.

The complainant’s disability being accepted by both parties, the Equality Officer examined reasonable accommodation and disproportionate burden.  He found that the respondent failed to provide reasonable accommodation and that no issue of disproportionate burden arose.  The complainant’s claim was upheld.  The Equality Officer directed that the complainant be reinstated to the grade VII role in the same region and that if no permanent position existed it should be in an acting capacity with the acting allowance paid immediately.  He directed that an assessment of the complainant’s needs be undertaken and findings agreed with the complainant.

Reinstatement, usually relevant to dismissal claims, is normally taken to mean that the person is put into the position as if the discrimination had not happened.  In this case, that would mean that the complainant would be paid as a grade VII from the date she was returned to her grade V, October/November 2014.  In addition, the Equality Officer directed the rather unusual remedy of the difference in pay from November 20124 to 1 September 2016 as a tax-free compensation lump sum thereby, depending on interpretation, effectively doubling the amount to be paid.