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            Ireland: Altering an employee's role while on maternity leave found to be discriminatory

            A recent case before the WRC (HR Manager v Aviation Recruitment and Staff Support Agency – ADJ-000231830) once again serves as a reminder of the strong protections for employees on maternity leave and their right to return to work.  

            Date: 06/05/2020

            Background

            The complainant started work with the respondent in June 2016 and was appointed to the position of Head of Human Resources, reporting to the MD, in April 2017. In July 2018, the complainant went on maternity leave. She returned to work in June 2019, but resigned from her post in September 2019. 

            The complainant filed complaints, under the Employment Equality Acts 1998-2015 and the Maternity Protection Acts 1994 (as amended), with the WRC on the 12th July 2019 and claimed that the role to which the complainant returned following her maternity leave, had been altered significantly compared to her pre-maternity post. 

            Preliminary Issue

            As a preliminary matter, the respondent argued that the complainant could not use the same set of facts to pursue her complaint under both the Employment Equality Acts and the Maternity Protection Acts and that she must confine her claim to one of the statutory routes. 

            The complainant maintained that she was entitled to pursue the two actions but also stated that, if forced to choose, she would elect to take a case under the Employment Equality Acts.

            The Adjudication Officer ultimately found that it was permissible for her to consider complaints under both pieces of legislation, in circumstances where no previous decision/ award had been made in respect of either complaint. 

            Substantive Issue – Complainant's Argument

            The complainant argued that the position to which she returned following her maternity leave, was materially different to the position she held immediately prior to her leave and that this constituted discrimination on the grounds of gender and family status.  

            In particular, the complainant noted that she was no longer head of crewing services; she was no longer a member of senior leadership team; she was no longer permitted to work from home; she had lost responsibility for company sites in China, Japan, Vietnam, London, Spain and USA; and her divisional responsibilities for recruitment services and respondent crewing services were extinguished.
            The complainant claimed that this was evidence that her role and responsibilities were significantly reduced. She asserted that this role was disadvantageous to her and limited her progression prospects.

            The new HR role


            The complainant accepted in cross examination that, in January 2019 while she was on maternity leave, she was made aware of the creation of a new HR role in the organisation and that she would be reporting to the person who assumed this new role. However, the complainant said that while she was shown a structural chart, she was not informed of the change in function. The post was then filled in April 2019. 

            The complainant tried to get clarity about her role but none was forthcoming. In April 2019, she asked the MD about her role on the senior management, but he declined to answer. She subsequently asked the new HR Manager in May 2019, who she should report to; he was uncomfortable and did not respond. The complainant acknowledged the discussion which took place in January 2019, but refuted the suggestion that she was informed of the loss of her leadership role during those discussions.

            The complainant questioned the respondent's need for a different type of HR role to deal with additional crew members and asserted that she wasn't given the option to apply for the new role.

            The Respondent's Argument 

            The respondent contended that that the employee re-entered the same role and/or that she was offered a suitable alternative role. 

            The respondent claimed that the needs of the organisation had changed as the number of employees handled by the respondent's HR department increased from 160 – 300, six weeks before the complainant went on maternity leave. The respondent stated that the organisational changes were brought about by a client's decision to outsource pilot training to the respondent. 

            The respondent referred to a meeting between the Vice President and the complainant in which they discussed the alteration of her role. It was acknowledged that the complainant was not expressly told that she would no longer be on the senior leadership team. The respondent also argued that a change of reporting line was not a material change of role.

            In addition, the respondent argued that the complainant's skill set was inadequate for the new HR role, claiming that the primary difference between the complainant's role and the new HR role was the ability to generate a revenue stream.

            Relevant Law

            Council Directive 2002/73/EC of 23 September 2002 amending Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards to access to employment, vocational training and promotion, and working conditions states:

            “A woman on maternity leave shall be entitled, after the end of her period of maternity leave, to return to her job or to an equivalent post on terms and conditions which are no less favourable to her and to benefit from any improvement in working conditions to which she would be entitled during her absence."

            Section 6.2A of the Employment Equality Act, 1998 (as amended) recognises that discrimination on the gender ground shall be taken to occur where: 

            “on a ground related to her pregnancy or maternity leave, the woman employee is treated in a manner which is contrary to any statutory requirement, less favourably than another employee is, has been or would be treated”. 

            The statutory requirement with which the respondent must comply is section 26 of the Maternity Protection Act,1994 which states that an employee is entitled to return to work

            “under terms and conditions not less favourable than those that would have been applicable to the employee if she had not been so absent from work”. 

            The Decision

            The Adjudication Officer found that the complainant did not return to the same position she held before going on maternity leave. She returned to an altered role following a period of protective leave – maternity leave. She held that the complainant had raised a valid inference of discrimination in that her gender and maternity leave were in the range of possible reasons as to why the respondent chose not to return her to the exact role or a role with the same level of responsibility within the organisation, following her maternity leave. 

            While the Adjudication Officer accepted that the respondent's needs had changed, she found that the respondent displayed disregard for how the changes and the new HR role would impact on the complainant's role and status. Interestingly, the Adjudication Officer also noted that impact on the complainant's role, was not merely confined to salary, leave facilities and such tangible benefits. 

            In addition, the Adjudication Officer found that no effort was made to retain the complainant as part of the senior leadership team; that she lost her status as the most senior HR employee, that her supervisory capacity was reduced; and that her reporting line had changed. All of this meant that the role to which the complainant returned to following her maternity leave, was not an equivalent role. 

            In relation to the new HR role, the Adjudication Officer also found that the complainant was not made aware of any advertisement or selection process for the position. While accepting that complainant ultimately did not have the skill set for the role, the Adjudication Officer found the complainant was given no opportunity to contradict this argument.

            The Adjudication Officer concluded that the respondent failed to rebut the presumption of discrimination and awarded the complainant compensation in the amount of €41,370 (equivalent to six months remuneration) for the distress resulting from discrimination.

            Key Points for Employers

            Many employers are often reluctant to make contact with employees while they are on maternity leave. However, this case demonstrates the importance of consulting with employees and making them aware of changes that are proposed in the organisation, particularly where they are likely to have an impact on the employee's role. 

            It may not always be practical for an employee to return the exact role they held prior to going on maternity leave, in which case the employee should be offered a suitable alternative role. In deciding what is a suitable alternative, it is important to consider the potential impact on the employees level of authority, seniority and supervision capacity. 

            It is also important that any employees on maternity leave are included in the selection process for a new role, which is linked or related to the role the employee held before going on maternity leave.  


            First published on Legal Island on 28th April 2020 

            Authors: Alison Martin and Thomas Bulfin.

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