Case Number: DEC-E2016-036. Workplace Relations Commission

CourtWorkplace Relations Commission
Judgment Date01 February 2016
Docket NumberDEC-E2016-036
PartiesMs A -V- A County Council
EMPLOYMENT EQUALITY ACTS 1998-2015 DEC – E2016-036 Ms A (represented by Andy Pike, IMPACT) versus A County Council (represented by Eamonn Hunt, Local Government Management Agency) File reference: EE/2013/178 Date of issue: 22nd February 2016

Keywords: Employment Equality Acts, Gender, Discriminatory dismissal, Pregnancy, failure to renew fixed-term contract, County Enterprise Board, Local Enterprise Office


1.1 The case concerns a claim by Ms A against A County Council. Her claim is that she was discriminatorily dismissed on the grounds of gender in terms of 6(2)(a) of the Employment Equality Acts 1998 - 2015 [hereinafter referred to as ‘the Acts’].

1.2 Through her trade union, the complainant referred a complaint under the Acts to the Director of the Equality Tribunal on 12th April 2013. On 19th February 2015 in accordance with his powers under Section 75 of the Acts, the case was delegated to me, Orlaith Mannion, 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 this date, my investigation commenced. Submissions were received from both parties and a joint hearing was held on 9th July 2015 as required by Section 79(1) of the Acts.

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

Summary of the complainant’s case

2.1 The complainant (Ms A) submits that she was discriminated because her fixed-term contract was not renewed on 15th October 2012 and that this was linked to her pregnancy. She submits that when her employer became aware that she was pregnant they informed her that her contract would not be renewed. She submits that a male comparator’s (Mr Z) contract was renewed. Ms A submits that she and Mr Z did broadly similar work but he was kept on and she was let go.

2.2 Ms A commenced employment with this County Council on 15th October 2007 as an Administrative Officer in enterprise development. She left a lucrative position in Dublin to take this role as it matched her skillset – project management, tourism and enterprise development. She was a direct replacement for a Mr B who also was externally recruited for this role. Mr B left his position as Administrative Officer in charge of enterprise to work for the local TD. He remains working for the TD and he is on secondment there as a permanent Council employee thus creating a vacancy for his position. Since the termination of Ms A’s contract, this role remains unfilled.

2.3 Ms A submits that her role was described on the organisation chart on the Council’s intranet as a secondment. From this, Ms A submits that she and everybody else there understood her role would continue until Mr B returned to work for the Council. She performed well in her role, there were no disciplinary issues whatsoever and always received good to excellent ratings in the Council’s performance management and development system (PMDS).

2.4 Ms A submits that the need for her role had increased not decreased as local authorities have taken over responsibility for enterprise development with the abolishment of County Enterprise Boards and the formation of Local Enterprise Offices within the local authorities. At the time of the non-renewal of her contract, this was imminent.

2.5 On a few occasions during her employment, Ms A raised the issue of the extension of her contract of employment with Mr C [Director of Services]. She maintains on all occasions he said that the decision was not his to make as it was a Human Resources matter. He asked her whether she would be willing to work in other work areas of the County Council e.g. tourism development. Ms A submits that she told him that she would be very flexible and that she has a MA in tourism studies so would be happy to work in that area also.

2.6 Meanwhile the person she names as her comparator, Mr Z was handed a contract of indefinite duration a year before his fixed term contract expired. The complainant submits that he was effectively made permanent with limited negotiation on his part. In fact Mr Z had applied for her position at the same time as her but she had obtained it ahead of him due to her experience and qualifications. Yet he was the person kept on!

2.7 Although very happy in her work she noted that there was an aura of anti-feminism in the Council. Out of the blue in 2010, the complainant submits that she was contacted by Ms F [Employee Welfare Officer] to attend a meeting to discuss Ms A’s sick leave record. Ms A maintains that she was startled by this. She submits that her sick leave was minimal and far below many of her colleagues. It did not warrant a meeting as per the Council Sick leave policy as published on the Council’s intranet. Almost all of her sick leave was certified by a doctor. The certificates would have read ‘post-operative recovery’. However, the complainant had to explain each of her sick leave absences to Ms F – most of which related to miscarriages which Ms A found upsetting to talk about. During her employment with the Council, Ms A had one successful pregnancy and four miscarriages. For three of the miscarriages she took five days sick leave to recover from the surgery. When she returned to work she did not discuss the reason for her absences as she still felt raw. She submits that all ante-natal appointments were taken in her own time. Ms A submits that her attitude is just to get on with life and do her grieving in private. She would not have discussed these miscarriages openly in work. Ms F became embarrassed as she realised that Ms A should never have been called to the meeting as her sick absences were well below the amount justifying such a meeting. Ms F apologised profusely. However, Ms F refused to identify to her who asked her to conduct such a meeting.

2.8 There were more complications to a miscarriage Ms A had in 2011 requiring her to take extended sick leave in August and September 2011. While she did not discuss it openly, she did tell Mr C the reason why she would be absent for so long. Mr C was aware that she was pregnant, her subsequent miscarriage and her history of previous miscarriages.

2.9 Ms A arranged a meeting with Mr D [Senior Executive Officer - Human Resources] in June 2012 to discuss the renewal of her contract. She submits that he said to her that her contract was linked to Mr B’s secondment and that because he was unlikely to return in the short-term she ‘should be safe’ but that he would check. In fairness to Mr D, he did check with Mr B who confirmed to him that Mr B would not be returning during the current Dáil term, if at all. These were the noises her line manager Mr E was also making. Ms A maintains that Mr E regularly said that she had a unique skillset which the Council needed, that Mr B was unlikely to return and that she should be confident that her contract would be renewed.

2.10 In 2012 Ms A became pregnant again. She deliberately delayed in announcing that she was pregnant as she had four miscarriages in five years and she wanted to wait until the pregnancy was quite advanced. The baby was due at the end of October and she informed Mr C in July. The day she returned from her summer holidays on 23rd August 2012, Mr C informed her that her contract (due for expiry in October) would not be renewed. He cited the prevailing economic circumstances as the reason for her contract not being renewed. Ms A maintains that Mr C also said ‘the fact that you are pregnant does not help’. She submits that she was shocked at the news. However she managed to calm herself enough to say that her contract was linked to Mr’s B’s secondment and that Mr D had confirmed that. She submits that Mr C replied that information was incorrect. Ms A maintains that she went on to ask in the meeting why was she not told that her contract would not be renewed much earlier in the year (i.e. before she announced that she was pregnant) when the economic circumstances would have been the same in January as they were in August. She submits that Mr C just shrugged his shoulders.

2.11 Ms A sought a meeting with Mr D (HR Manager) to covey how shocked and upset she was by this news and the insensitive way Mr C handled it. Mr D asked whether she was content for him to mention this conversation to Mr C and she replied that she was.

2.12 On 6th September Mr C rang her to say he wanted to clarify his earlier remarks. She maintains that this was because he knew (following talking to Mr D) that he should not have linked her pregnancy to the non-renewal of her contract. Ms A indicated that she would prefer to have this discussion in person and not on the phone.

2.13 Ms A was officially informed of the non-renewal of her contract by letter on 13th September 2012 (only one month before its expiry). This letter mentioned nothing about her entitlement to redundancy and she submits she would never have got her entitlements if her Trade Union had not pursued this case. She submits this is...

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