This is a relatively long decision reflecting the many issues raised by the complainant as discriminatory. The complainant, a Nigerian, was employed by the respondent between September 2006 and December 2009. During that period she availed of two periods of statutory maternity leave, totalling in excess of one year. The complainant asserted that:

* she was told she would be promoted but subsequently was not
* that her security access was reduced, 
* that the appraisal mark assigned to her, 
* that being placed on a PIP, 
* being refused access to training
* her selection for redundancy
* her appeal of her redundancy
* the requirement for a compromise agreement to receive an ex gratia payment
* being ignored by her second line manager

all constituted discrimination/discriminatory dismissal of her on one or more of the four grounds she proffered. These grounds were gender, marital status, family status and race. None of the complainant’s allegations were upheld and the Decision moves through these various issues thoroughly. In this report it is proposed, rather than report the factual matters considered, to address the various technical issues that are of interest.

The complainant originally lodged her claim in respect of three grounds, omitting gender. The Equality Officer states that the case law indicates that “it is permissible to amend a complaint provided the general nature of the complaint remains and there is no prejudice to the respondent”. In this case it was originally considered that pregnancy and maternity are covered by the family status ground. (This is, in fact, the case in respect of the Equal Status Acts 2000 – 2011.)

However, the submission was clear that the complainant’s periods of maternity leave were fundamental to the claim. The Equality Officer concluded that the nature of the claim had not changed and that there was no prejudice to the respondent and permitted the inclusion of the gender ground.

The complainant did not complete her Performance Appraisal Process in 2008 and she was given a default rating of 3 representing satisfactory performance which was used in the redundancy selection process in 2009. The complainant took issue with this rating but presented no evidence in support of her assertion that her performance warranted a higher rating. 

The Equality Officer stated: “I am satisfied that the respondent was seeking to place the complainant in a comparable situation to those who received an actual rating by awarding her the default rating of “3”. Whilst this approach may not be ideal I accept that there was no other realistic option available to it at that time. Had it left this criterion blank because the complainant had not completed the appraisal process for 2008 due to her absence on maternity leave, it is likely the complainant would have an arguable case that she was less favourable treated because of her absence on that basis.”

The inconsistency of the complainant’s direct evidence (in respect of when Ms. G was told the complainant was pregnant) was sufficient to outweigh its probative worth in comparison with the written evidence of a person not in attendance at the hearing. The complainant sought to resile from previous evidence on a second occasion in respect of the minutes of meetings held relating to the redundancy selection process.

Why is this case of interest?

* When dealing with a claim, 

- Do you consider all of the grounds that may be relevant in light of the facts? The complaint forms are not statutory forms and cannot be relied on in isolation.
- Do you prepare a timeline? This is a really useful tool. Knowing the date a person became aware of the relevant information, in comparison to other events, is often crucial in how the matter will be decided.

* If handling a redundancy selection process, do you ensure that any employees who have been on maternity leave, or otherwise absent, are not negatively impacted by the application of the chosen criteria? This requires a consideration of the employee’s position after the application of the criteria to assess whether or not there was an adverse impact.