1. Background and Summary of Complainants Case
The complainant contended that she was subjected to discriminatory treatment by the respondent on the grounds of gender and disability in terms of Section 6(2) of the Employment Equality Acts (“the Acts”), and contrary to section 8 of the Acts.
The complainant commenced employment with the respondent in July 2006 as a Private Banking Manager and submitted that by December 2006 there were a number of unresolved issues relating to a lack of support, targets, appraisals and access to the system between her and her manager which began to take a toll on her health. She further submitted that she announced her pregnancy on 27 August 2007 and took certified sick leave from 10 September until 22 October 2007.
Upon her return to work, the complainant stated that her former regional manager (Mr X) confronted her in an aggressive manner over the provision of cover for her workload and this caused her considerable distress. The complainant submitted that she was then asked to step back from her workload or to consider an alternative or support role for the remainder of her pregnancy. At the end of2007, a new regional manager (Mr Y) was appointed and directed that the complainant take any issues she had in relation to her former manager to the human resources section of the company. In addition Mr Y announced that a new private banking manager had been appointed to her area (Ms Z).
The complainant wrote to Mr Y indicating that she would return to work on 23 September 2008. On 12 September, the complainant stated that she was requested to dial into a conference call during which Mr Y indicated that there would be changes in the structure of the business going forward. Upon her return to work, the complainant stated that her replacement continued to deal with her portfolio of clients while she was given a different portfolio which she deemed to be a demotion.
The complainant invoked the grievance procedure on 26 January 2009 and submitted her grievance in writing on 17 February 2009 when she had received no response from HR. HR subsequently indicated that the grievance procedure could not proceed as she had been on certified sick leave since 2 February 2009.
2. Summary of the Respondent’s Case
The respondent submitted that it was not made aware of the complainant’s work-related stress issues during 2006/2007. The respondent further submitted on her return to work, a meeting was requested with the complainant and at that meeting the complainant spoke about her health and pregnancy. In response to this, Mr X suggested that for the remaining period until her maternity leave, the complainant might prefer to take on a somewhat less demanding role in the customer services/support area.
The respondent further submitted that the decision to appoint an additional private banking manager to the complainant’s area was taken in October 2007 in accordance with its business requirements and objectives however at no time was it envisaged that the new appointee, Ms Z, would replace the complainant as alleged, but rather the appointee would complement the complainants work.
The respondent stated that during the complainant’s maternity leave, Ms Z, covered the complainant work region. Also during this period, the economic downturn worsened considerably and the respondent’s business levels decreased. The respondent submitted that the complainant’s duties upon her return were consistent with the changes that were required across its business generally. The respondent submitted that at no time did Mr Y say or admit that the complainant’s return to work was a ‘charade’ or that it had been badly handled and in fact it was handled with the greatest of competence and sensitivity.
The respondent submitted that in February 2009, the complainant submitted doctor’s certificates to cover sick leave and that this was the first time that the complainant raised the issue of work-related stress. Following the complainant’s return to work, the respondent noted that it was very challenging for the business and that it involved a major overhaul of various employee duties and responsibilities. Ultimately, following on from the restructure of its business, the respondent made a commitment to all redeployed staff that it would work with them to seek opportunities elsewhere.
3. Findings and Conclusion of the Equality Officer
The Equality Officer noted that the situation regarding a woman returning to work after maternity leave is set out in EU Directive 2002/73/EC (as amended) which 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.”. He further noted that these provisions are enshrined in the Maternity Protection Acts and that any departure from this entitlement constituted direct discrimination of the woman concerned on grounds of gender.
The Equality Officer noted that although the complainant returned to a position where the rate of pay which applied pre- and post- maternity leave had not changed, a number of other factors were important in determining whether she was less favourably treated or not. He noted “Given that the complainant’s old position existed and was being filled by another employee, I consider that the complainant has established facts from which discrimination may be inferred……”.. He further noted that “Matters that stand out in establishing whether the two posts were equivalent relate to the reporting structure of the positions, the point of contact elements with clients, the identification of the postholders in management information reports and the issue of performance targets (KRA’s) and the annual performance review.4.10
He noted….”I am not satisfied that the position to which the complainant returned following her maternity was equivalent to that which she had left. On balance, I consider this position dilutes the level of responsibility accorded to the complainant and the manner in which she was managed appears to be less favourable to how others were treated in the circumstances of the ongoing banking crises extant at that time. In this regard, I do not consider that the respondent has established that this new role was equivalent to the position which the complainant occupied prior to going out on Maternity Leave and was less favourable to the complainant”.
The Equality Officer concluded:
1. The complainant was not subjected discriminatory treatment on the basis of a disability and this element of the complaint fails.
2. The respondent has not rebutted the inference of discriminatory treatment following the complainant’s return from maternity leave as raised by the complainant and this element of the complaint succeeds.
3. The respondent did subject the complainant to discriminatory treatment on the grounds of gender in terms of section 6(2) of the Employment Equality Acts. The complainant was awarded €30,000 in compensation for the discriminatory treatment suffered which equated with six months salary.