Case Number: DEC-E2016-048. Workplace Relations Commission

• Judgment Date: 01 March 2016
• Court: Workplace Relations Commission
• Docket Number: DEC-E2016-048
• Parties: Sinead Brady -V- Cavan VEC And Virginia College

EMPLOYMENT EQUALITY ACTS DECISION NO. DEC-E2016-048 PARTIES Sinead Brady (Represented by Eilis Barry B.L instructed by IHREC) AND Cavan VEC (EE/2012/551) And Virginia College (EE/2012/552) (Represented by Mason Hayes Curran, Solicitors) File reference: EE/2012/551 & 552 Date of issue: 10th March 2016

HEADNOTES: Employment Equality Acts Sections 6 (2) (a) as amended by section 4 the Employment Equality Act 2004 Conditions of Employment-Gender-Discrimination Pregnancy-Harassment-Victimisation.

1 DISPUTE

1.1 This dispute concerns a claim by Ms Bradythat she was discriminated against by her employer on the grounds of gender and pregnancy contrary to section 6 (2) of the Employment Equality Acts in respect of access to promotion and grading under the terms of Section 8 (1) (d).

1.2 The complainant referred her claim to the Director of the Equality Tribunal on 18th October 2012 under the Employment Equality Acts. On 29th September 2015, in accordance with his powers under section 75 of the Acts, the Director delegated the case to me, Pat Brady, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts, on which date my investigation commenced. Submissions were received from both sides and in accordance with Section 79(1) of the Acts and as part of my investigation I proceeded to a hearing on October 1st 2015.

1.3 This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 83 (3) of the Workplace Relations Act 2015.

1.4 There are two respondents; Virginia College and what was then County Cavan VEC, (now ETB). However the case was presented as a single case and likewise the response to it. The VEC, (now ETB) is the de facto employer.

1.5 The complaint on the grounds of victimisation was withdrawn at the hearing.

2 COMPLAINANTS' SUBMISSION

2.1 The complainant is a qualified Guidance Counsellor holding an M.Ed. in Career Guidance and Counselling and separate postgraduate diplomas in Positive Behaviour Management, in Psychology and in Reality Focussed Brief Therapy. She has further training in relation to the management of bullying. She started work in Breifni College in 2005 as a Guidance Teacher. She transferred to Virginia College in September 2008.

2.2 The complaints fall into three broad categories, two significant strands of complaint and a third comprising a number of individual episodes. The first related to alleged harassment by her then Principal (henceforward K) initially during her tenure as a teacher in Breifne College, and continuing after her transfer to Virginia College in 2008 up until December 2011. The second main area concerns her treatment while on maternity leave in 2011 and 2012 mainly arising from proposals to make her post redundant and redeploy her to other teaching duties.

2.3 Thirdly, there are a number of specific episodes which she alleges indicate a ‘discriminatory bias’ on the part of Virginia College against pregnant employees.

2.4 Turning to the first category there were a series of examples of ‘inappropriate behaviour’ by her former principal, K which included his continuing to assert how he could assist her career. Detailed examples were given of serious incidents. However, the last in this sequence of incidents falls outside the time limits required by the Acts and in view of my conclusions below on this point further detail is unnecessary.

2.5 She further complains that despite being five months pregnant she had been put on ‘yard duty’ and felt exposed to danger in the course of a fight between students. Nothing was initially done until the matter was raised a second time with the Deputy-Principal.

2.6 The second batch of issues relates to the period of her pregnancy in 2011, the intrusions into her maternity leave, and the fact that the position she was offered following maternity leave was, in her submission, significantly different to the one she left. It involved either returning as a ‘class’ teacher of History and English or accepting some other, as at the time, unspecified redeployment to another school. Indeed she experienced some very considerable difficulty in getting further clarity on this point and eventually that option did not materialise.

2.7 Despite having to endure a difficult pregnancy she was contacted while on maternity leave about various aspects of a decision to make her post as a Guidance Counsellor redundant and require her to redeploy to other teaching duties for which she says she was not qualified.

2.8 In due course (May 12th 2012) the redeployment option was withdrawn. Indeed two days later she received something in the nature of an ultimatum to confirm that she would accept the ‘class teacher’ offer.

2.9 Despite stating on October 3rd that she would return to work ‘under protest and reserving my rights under my current contract as a permanent whole time career guidance teacher’ her health deteriorated to the point where, on medical advice she did not do so.

3 RESPONDENT'S SUBMISSION

3.1 The respondent noted that the original complaint in Form EE 1 related only to the harassment and victimisation in relation to the pregnancy and maternity leave and ‘other matters’. That form further stated that the discrimination claimed had been ongoing since the beginning of 2012. It stated that the ‘inappropriate behaviour’ alleged against K was outside the remit of the complaint and declined to call evidence in respect of the complaint against K, firstly because it said that the sequence of complaints was out of time and there was no continuum with those which were within time and also to spare the complainant any further trauma. The last incident submitted of by the complainant took place in December 2011.

3.2 It responded in detail to the allegations about the treatment of the complainant by both Virginia College and the then VEC.

3.3 The respondent accepts that the Principal SF made contact with the complainant in March and April 2012. It says that this was to communicate the difficulty that had arisen in relation to her post.

3.4 The Principal gave evidence that she acted in good faith and was concerned about the alternative possibility that the Complainant might learn of the development through third parties and become even more upset. There was detailed and conflicting evidence about the demeanour or behaviour of the parties at the meetings which is, in any event secondary to the main complaint.

3.5 The respondent submitted that the complainant was not harassed while she was on protective leave for the reasons set out above and when correspondence was received on August 17th 2012 requesting it to direct the correspondence to her union only it did so.

4 FINDINGS & CONCLUSIONS OF THE EQUALITY OFFICER

4.1 In reaching my decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the extensive evidence presented at the hearing. I have to decide three key matters;

4.1.1 The first relates to the allegations that the complainant was subjected to sexual harassment by K mainly in the course of her employment in...