Case Number: ADJ-00000026. Workplace Relations Commission

• Docket Number: ADJ-00000026
• Date: 01 April 2016
• Court: Workplace Relations Commission
• Parties: Employee v Employer

ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000026

Complaint(s)/Dispute(s) for Resolution:

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-00000048-001	04/10/2015

Date of Adjudication Hearing: 20/01/2016 and 01/03/2016

Workplace Relations Commission Adjudication Officer: Joe Donnelly

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, and/or Section 79 of the Employment Equality Act, 1998, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Complainant’s Submission and Presentation:

I am employed as a vet with the employer. I have been discriminated against on grounds of gender and family status during my first pregnancy, first maternity leave and now second pregnancy and maternity leave. I informed my employer of second pregnancy in March 2014 as I was pregnant with twins. I was subjected to discrimination during my pregnancy and I was excluded from aspects of my duties of employment during my pregnancy. My workload was unilaterally reduced and my income adversely affected. I returned from Maternity leave on 6th April 2015 and I have not been provided with my job or same terms and conditions as pre maternity leave. My maternity leave replaced and or more recently recruited employee has taken over significant parts of my duties. My employer is seeking to push me out of my employment on grounds of my gender and or family status. I reserve the right to raise further particulars as required. I will furnish a further fuller statement in the coming days together with legal submissions.

In 2005 the complainant renegotiated her contract with the respondent whereby she would be paid commission and work on an agreed rota including providing weekend cover. She would be contacted by the office and informed of her appointments which in the main would involve visits to farms.

The complainant had her first child in 2007. In Spring 2014 she became pregnant again and informed the respondent accordingly. During this pregnancy the respondent hired two vets, the first one during the complainant’s pregnancy and the other (a nephew of one of the partners) at the commencement of her maternity leave.

Upon the complainant’s return from maternity leave the second vet was retained in the practice and she was advised that, as there was not enough work for the vets in the practice, she should look for part time work elsewhere. A significant number of duties previously being performed by the complainant were now being performed by this other vet and this in turn has led to a sizeable reduction in her earnings. In particular the complainant now gets very little small animal work.

The treatment of the complainant following her maternity leave has resulted in terms and conditions of employment which are far less favourable than those that existed prior to that leave and is discriminatory on the grounds of gender and family status.

As regards the complainant’s employment status, she worked on commission and work was provided for her by the respondent. Her professional insurance was in relation to the practice only. The respondent exercised day to day control in regard to her work, her hours of work were subject to a roster and she had to request time off which on occasions was refused. The complainant was therefore integrated into the practice and there was a strong mutuality of obligation between the parties. These factors in turn indicate the existence of a contract of employment between the parties.

Respondent’s Submission and Presentation:

The complainant was never employed by the respondent but rather she entered into an agreement to supply services on an independent contractor basis, initially on a consultancy basis and thereafter on a commission basis at the behest of the complainant.

The general basis of the agreement was that the respondent would contract out the supply of some of their services when necessary – generally when there was work that the partners or their employee vets could not cover.

In 2004 the practice had advertised for a vet who would be an employee and receive a salary. The complainant was offered that position but she responded that she preferred to be self employed. Her initial position was as consultant on a fixed monthly remuneration but in 2005 the complainant requested that she be paid on a commission basis and an agreed percentage was negotiated. The respondent did not deal in any way with income tax, PRSI, USC or provide holiday pay. No car was supplied nor any travelling expenses paid. The practice paid the complainant’s professional insurance fee but this was then fully reimbursed by the complainant.

Any work that the complainant was excluded from was at her behest and/or on the advice of her medical advisors. Work in the practice had also got quieter, due partly to the eradication of brucellosis, so there was less need to contract out work. She also excluded herself from work in meat factories and dog tracks.

The respondent took on one vet in 2014 as replacement for another vet. A second vet was employed later that year on a temporary basis and as cover for one of the partners who had suffered an injury. That vet’s employment was extended due to the illness and death of the partner’s wife and subsequent increased family responsibilities.

The respondent regularly refused work because of commitments in relation to her daughter.

In summary the complainant was not employed by the respondent nor was the complainant discriminated against on the basis of her family status, gender or otherwise.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 79(6) of the Employment Equality Act, 1998 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

Issues for Decision:

The issues that require decision are;

Is the complainant employed under a contract for service or a contract of service?

If employed under a contract of service was the complainant discriminated against on the grounds of gender and family status contrary to the provisions of the Employment Equality Act 1998.

Legislation involved and requirements of legislation:

The Employment Equality Act 1998 states that

“employee, subject to subsection (3), means a person who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment…”

. In addition the Act states that

“employer, subject to subsection (3), means the person with whom the employee has entered into or for whom the employee works under (or, where the employment has ceased, entered into or worked under) a contract of employment.”

Section 6 (1) of the Act reads:

“For the purpose of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination will be taken to occur where –

(a) A person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the ‘discriminatory grounds’) which –

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