Case Number: ADJ-00022172. Workplace Relations Commission

• Docket Number: ADJ-00022172
• Hearing Date: 15 January 2020
• Date: 09 June 2020
• Court: Workplace Relations Commission

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Acts, 1998 - 2015,following the referral of the complaint/dispute to me by the Director General, I inquired into the complaint/dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint/dispute. The complainant gave evidence. An Assistant Principal from the Payroll Division and an Assistant Principal from the Pensions Unit of the Government Department gave evidence. The parties were afforded the opportunity to examine and cross examine each other’s evidence as part of the hearing. Each party was represented by counsel and questions were asked.

Background:

The complainant qualified as a primary teacher. After she qualified, she put her name on a supply list for substitute teachers. She commenced working as a substitute teacher on 07 March 2003 and became a member of the pension scheme. The pension scheme the complainant joined was the one applicable prior to 01 April 2004 (Old Scheme). The complainant gave birth to her first child on 09 September 2013. The complainant returned to work as a substitute teacher on 17 February 2014. In 2018 she made an enquiry about her pension contributions. The respondent informed her she had made contributions into both the pre-01 April 2004 scheme (Old Scheme) and the Single Public Service Pension Scheme (Single Scheme) schemes. The complainant claims her contributions should always have been to the original pre-01 April 2004 scheme (Old Scheme). She claims that she was on maternity leave between 19 August 2013 and 15 February 2014 and this period should not have been treated as a break in her service resulting in her being placed in a less favourable pension scheme on her return from maternity leave. Her total pay for the year ending 31 December 2018 was €29,721.87. The complainant submitted her complaints to the Workplace Relations Commission on 12 June 2019.

Summary of Complainant’s Case:

The complainant has made two claims. The first, under the Maternity Protection Act, 1994 Sections 30 and 31 claiming she did not receive her entitlement to maternity leave and that she returned to work following maternity leave on less favourable terms and conditions, in particular her pension and these conditions are ongoing and continuing. The second, under the Employment Equality Act, 1998 claiming she has been discriminated against, by reason of her gender and family status, by her employer classing her maternity leave as a break in service resulting in her being placed on a less favourable pension scheme. The complainant commenced working as a substitute teacher in 2003. She joined the Old Pension Scheme. She worked at various schools substituting for other teachers. She gave birth to her first child on 09 September 2013 and she states that she was on maternity leave from 19 August 2013 to 15 February 2014. She returned to work on 17 February 2014. She gave birth to her second child in 2016. On 16 April 2018 the complainant sent a query to the Pensions Unit of the respondent. She wished to know to which pension scheme she was making contributions. The respondent operates three pension schemes; the pre-01 April 2004 (Old Scheme), post-01 April 2004 (New Entrant) and the post 2013 Single Public Service Pension Scheme (Single Scheme). After a number of reminder emails the respondent replied on 08 November 2018. The respondent informed the complainant that she had made contributions to both the Old Scheme and to the Single Scheme. The complainant was informed that the reason she was now contributing to the Single Scheme was because of her break in service in 2013/2014. That is the period she claims she was on maternity leave for the birth of her first child. The complainant submits that there are considerable differences between the schemes. The Single Scheme being less favourable than the Old Scheme. She submits that the period from 19 August 2013 to 15 February 2014 was a period of maternity leave, protective leave and was not a break in service. The complainant submits she was not permitted to return to her post on terms and conditions which were no less favourable to her in accordance with the provisions of Article 15 of the EU Directive 2006/54/EC and the Maternity Protection Act 1994. The less favourable terms and conditions are ongoing and continuing. The complainant further submits she was discriminated against by the respondent and continues to be discriminated against, by reason of her gender and family status in having her maternity leave classed as a break in service resulting in her being moved to a less favourable pension scheme. It is submitted that the complainant has been treated less favourably than her male counterparts as well as her female counterparts who have not availed themselves of maternity leave. Legal Submission The complainant submits EU Directive 2006/54/EC at Article 15 and the Maternity Protection Act 1994 prohibits an employer from treating an employee on maternity leave less favourably on her return to work. The EU Directive has direct effect and is applicable to Irish employees. Sections 26 and 27 of the 1994 Act give an employee the right to return to the same or no less favourable job at the end of maternity leave. The Employment Equality Act prohibits discrimination on the grounds of gender and family status. Section 6 (2A) provides that discrimination on the gender ground shall be taken to occur where, on a ground related to her pregnancy or maternity leave, a woman employee is treated less favourably than another employee is, has been or would be treated. This reflects the approach of the European Court in Dekker v Stichting Vormingscentrum voor Jong Volwassenen (Case C 177/88) [1990] ECR I-3941. The complainant did not receive a document which set out a gender equality clause or a non-discriminatory clause, but such clauses are taken to be included in the terms of her contract by Sections 21 and 30 of the Employment Equality Act, 1998 (as amended). The submission relied on O’Brien v Persian Properties T/A O’Callaghan Hotels DEC-E2012-010, Gardiner v Mercer Human Resource Consulting DEC-E2006-007, Jones v Norwich Union International Limited DEC-E2006-062, Campbell v Bank of Ireland Private Banking DEC-E2013-046 and Susanne Lewen v Lothar Denda Case C-333/97. The complainant relied on Ntoko v Citibank [2004] 15 E.L.R. 116 to support the use of a hypothetical comparator. It was submitted that the complainant had discharged the burden of proof pursuant to Section 85A of the Employment Equality Acts and relied on the Labour Court decisions in Hallinan v Moy Valley Resources DEC-E2008-025 and Cork County Council v McCarthy EDA0821. In the Hallinan case the Labour Court set out that a complainant meeting the burden of proof must establish: - i. That he or she is covered by the protected ground; ii. Establish the specific treatment has allegedly taken place; iii. That the treatment was less favourable than was or would be afforded to a person not covered by the relevant discriminatory ground. The complainant is seeking to be placed back on the Old Scheme and is seeking compensation for the effects of discrimination. It is submitted that the decision in Von Colson and Kamann v Land Nordrhein-Westfalen [1984] ECR 1891, CD Robinson-Steele Case C-131/04 should be considered in assessing compensation. Further, it was submitted that the complainant was entitled to legal aid or in the alternative, in addition to an award of compensation, the costs incurred, by virtue of Case C-684/16 and Article 47 of the Charter of Fundamental Right of the European Union and the Von Colson principles. The complainant rejects any argument that the time period within which to bring these claims was within six months of her return to work from her first period of maternity leave. It is submitted the discrimination against the complainant is ongoing and continuing. The complainant relies on the decisions in GP Trainer v Health Provider ADJ-00016102 and HSE v McDermott [2014] IEHC 331 to reject any argument the claims are brought out of time.

Summary of Respondent’s Case:

Preliminary Points Complaints Statute Barred The respondent submits that each claim is statute barred. The complainant maintains that in 2014 she was denied her rights under the Maternity Protection Act, 1994 by not being permitted to return to her post on terms and conditions which are no less favourable. The complainant also claimed that this treatment constituted discrimination under the Employment Equality Act. The respondent submits that any such complaints should have been brought...