While an employee is on maternity leave they will usually have little or any contact with their employer.  In this article, Sinead Morgan, Senior Associate in the Employment Team at DWF discusses a recent case which provides some guidance on an Employers obligations to notify an employee of any vacancies arising while they are on maternity leave.

A recent case highlights the obligations placed on an employer to engage with employees on maternity leave in relation to promotion opportunities.

The Legal Position ⚓︎

Section 6(1) of the Employment Equality Acts 1998-2015 ("the Equality Acts") provides that:

"(1) For the purposes of the Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances, discrimination shall be taken to occur where -

(a) one person is treated in a less favourably than another person is, has been or would have been treated in a comparable situation on any grounds specified in subsection (2) of this Act referred to as "discriminatory grounds".

Section 8(8) of the Equality Acts provides that:

"Without prejudice to the generality of subsection (1), an Employer should be taken to discriminate against an Employee in relation to promotion if, on any of the discriminatory grounds –

(a) the Employer refuses or deliberately omits to offer or afford the Employee access opportunities for promotion in circumstances in which another eligible and qualified person is offered or afforded such access, or

(b) the Employer does not in those circumstances offer or afford the Employee access in the same way to those opportunities".

Recent Case ⚓︎

In the case of Louise Kinsella v The Irish Prison Service (ADJ-00013612) the Complainant was employed as a Prison Officer in the Prison Service.  She commenced a period of maternity leave on 15 February 2017, which ended on 15 August 2017.  She then took some accrued annual leave, which ended on 24 September 2017. With the exception of four working days, during which the Complainant contended she had no access to emails, she was off work again until 30 October 2017.  At that stage, the Complainant realised that two promotional competitions had been advertised internally. The Complainant had not been notified of those competitions. The notifications occurred on 25 April 2017 and 30 August 2017. The closing dates for the competitions were 19 May 2017 and 22 September 2017. All notifications were made to staff via email. The Complainant had no access to the internal email system while she was on maternity leave.

Accompanying the notifications was a note stating that the relevant circulars and application forms should be "brought to the attention of all eligible staff, including those eligible staff who are on annual leave, sick leave, etc.".  The circulars included a form which was to be filled out listing the officers who had been on leave and had been notified of the vacancies. Circular 31/06 also provided that personnel officers should ensure office circulars, general circulars and open/confined competitions should be brought to the attention of officers on maternity leave.

One of the notifications occurred during the period of the Complainant's maternity leave with the last notification occurring during the period of accrued annual leave. The Complainant became aware of the promotional opportunities on 30 October 2017 and raised the issue with the Respondent.  The Complainant received a reply on 8 March 2018 confirming that she had not been advised of the promotional opportunities and apologised for the oversight. The Respondent explained that the error had occurred due to a number of administrative staff being on maternity leave. The Complainant became aware that one of the roles had not been filled. Despite their apology, the Respondent refused to facilitate the Complainant by allowing her to make a late application for that role.

Between 30 October 2017 and 13 January 2018, the Complainant and her Union gave the Respondent every opportunity to try to rectify the situation by engaging with the Respondent before the complaint was referred to the WRC on 24 March 2018.

Arguments ⚓︎

The Respondent claimed that the claim was statute barred and that there was no "reasonable cause" to extend time in circumstances where the complaint was lodged some eleven months after the first notification and seven months after the second notification of the promotion opportunity. The Respondent claimed that the failure to notify the Complainant of promotional opportunities was due to a lack of staffing which affected both male and female members of staff at the time. They argued that the Respondent had taken reasonably practicable steps to ensure that all members of staff were notified of promotional opportunities whilst on leave.

The Complainant claimed that she was discriminated by reason of gender when the Respondent failed to notify her of the promotion opportunities while she was on maternity leave.

The Complainant made two arguments in relation to the time limit.  In the first instance, the Complainant also relied on section 77(6a) of the Equality Acts which provides:

 "For the purpose of this section (a) discrimination or victimisation occurs and then

(i)   If the act constituting it extends over a period, at the end of the period".

The Complainant submitted that the failure to take the opportunity to facilitate the Complainant by allowing a late application in January 2018 was a fresh discriminatory act, which was sufficiently connected to the other discriminatory acts leaving the complaint within time.  Alternatively, the Complainant presented evidence that she only became aware of the discriminatory treatment on 30 October 2017 and that discriminatory occurrence could not have come to her attention within the six-month period provided for in the Equality Acts. In particular, the Complainant argued that in circumstances where pregnancy leave is unique to women it would be an anomaly if the period for making an application to the WRC had expired before the woman had returned to work.

Outcome ⚓︎

Time Limit

The Adjudication Officer found that occurrences outside the time limit could only be considered if the last act relied on was made 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 the continuum. They determined that the act of refusing the Complainant the opportunity to make a late application for promotion on 29 January 2018 was sufficiently connected to the act of failing to notify the Complainant of the first promotion opportunity in April 2017 and therefore the complaint was within time.

Discrimination

The Adjudication Officer confirmed that the period of maternity leave is a protected period for a woman and that the failure to offer or afford the Employee access opportunities for promotion constituted discrimination on the grounds of gender. The Respondent was ordered to pay the Complainant the sum of €15,000 by way of compensation. The Adjudication Officer noted that maternity leave had been omitted on the form accompanying the Circular and recommended that maternity leave be referenced in that form to ensure that staff on maternity leave were notified of future promotional opportunities.

Practical Guidance for Employers ⚓︎

While an employee should be left alone to enjoy maternity leave, they should not be left out of opportunities for promotion. For example, a similar principle would likely apply in the event of redundancy situation. In those circumstances, an employee on maternity should not miss out on opportunity to apply for alternative roles. Employers should retain clear records of those Employees on maternity leave and their return dates.

Where employees do not have access to work email while on maternity leave HR must ensure employees on maternity leave receive all relevant internal correspondence, in particular, any correspondence that could affect their ability to progress within the business.

Employers need to be aware that the period of maternity leave is the protected period of employment. If a claim arises, a high burden will be placed on employers to prove they took all reasonable steps to ensure no discrimination occurred during this period.