In today's diverse workforce, employers must accommodate the needs of employees with a wide array of personal circumstances, including caring responsibilities. A recent decision from the Workplace Relations Commission (WRC) (ADJ-00043686) highlights the potential challenges faced by employers when dealing with employees who are protected by equality legislation as a result of their personal circumstances.

Case Background:

This case centres around a single mother who successfully brought a claim based on various grounds against her former employer. The claims included a breach of contractual notice, a breach of the Terms of Employment (Information) Act, 1994; a breach of the Organisation of Working Time Act, 1997 relating to breaks; and most interestingly, a claim of a discrimination/equality breach under the Employment Equality Act,1998.

A key aspect of this case was the fact that the Complainant’s employment was terminated following complaints regarding her working hours and breaks. Despite her requests for flexibility to accommodate her caring obligations for a dependent child, the employer failed to provide adequate support which led to allegations of both indirect and direct discrimination based on her family status.

The Complainant commenced employment on 2 February 2022 and her employment was terminated on 1 November 2022 by reason of not successfully passing her probationary period. The Complainant’s employment was terminated one day after a probationary/disciplinary review meeting, almost three months after the expiry of her six-month probationary period.

In the letter of dismissal to the employee, the following two reasons for her dismissal were identified:

1. that the employee had only achieved the required targets in July and August; and
2. that the employee had not adhered to the required break and shift times.

As a single mother, she argued that she had experienced challenges in meeting the set targets within shift times and had requested flexitime to allow her to achieve her targets. The employee contended that her employer’s failure to consider her request for flexible working hours led to missed targets and that in those circumstances her dismissal constituted discrimination based on family status.

Adjudication Officer’s Decision

The Adjudication Officer (AO) outlined that there were four contract terms or conditions to consider relating to the claim of discrimination:

1. Flexibility relating to start and finishing times referred to as flexitime;
2. A breach of the probationary six-month period as a term in the contract being extended to nine months;
3. A breach of the contractual notice period and being dismissed within a working day of the disciplinary review; and
4. An absence of fair procedures as an implied term of the contract which the AO believed applied to both reasons given as part of her termination letter.

Did the Complainant Face Indirect or Direct Discrimination?

The AO undertook an assessment of whether indirect or direct discrimination based on family status had occurred in this case. The AO found that the employer’s strict start and finishing times impacted upon the Complainant’s ability to meet targets. The employee had shown that she was working remotely and willing to work outside of set hours to achieve her targets, but no flexibility was given or considered in return. As a result, the AO was satisfied that the employer’s conduct amounted to indirect discrimination based on family status and she was awarded three months' salary.

The AO also found that direct discrimination had taken place in relation to the employer’s failure to adhere to the contractual probationary period, notice period and procedural fairness. The WRC held that those failures were not breaches that the employer could argue were universally applied to all employees as this would suggest that the employer consistently breached its contractual probationary period, notice periods and fair procedures. The WRC was satisfied based on the evidence presented that the employer was on notice of the Complainant’s family status and that the Complainant was reviewed outside of her probationary period, which was more akin to a disciplinary review, and that she was not afforded fair procedures in the subsequent decision to terminate her employment within one working day. On that basis the WRC found that the Complainant had made out a prima facie case of direct discrimination of being treated less favourably than an employee without family status and she was awarded twelve months’ salary

The Complainant was awarded compensation in the total amount of €33,450 (equal to 15 months’ remuneration).

Key Takeaways for Employers

There are a number of interesting points which arise from this decision.

The case highlights the necessity for employers to consider adopting flexible working practices to accommodate employees' varying needs, including those with caregiving responsibilities.

A new WRC code of practice for employers and employees on the right to request remote and flexible working (the “Code”) in Ireland is expected to be published very shortly. Employers are encouraged to take all flexible working arrangement requests seriously and engage in a constructive dialogue with their employees to explore workable solutions for both the impacted individual and the business. The Code is expected to outline the criteria employers should adopt for assessing these requests for flexible working arrangements, which should assist employers in ensuring that decisions are made in a transparent way and are based on legitimate business reasons.

This case also serves as a practical example of the challenges and legal implications that businesses may face if they fail to accommodate the evolving needs of their workforce. The ‘flexible working’ component of the Code, which will be limited in scope to carers and parents, is expected to provide a comprehensive framework that not only includes the option for remote work but also encompasses various forms of flexible working arrangements, such as flexitime, compressed hours, job sharing, and remote working.

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