- Posted by Olivia Hande
- On August 11, 2016
- Employment, Equality, Labour Court
In this series former Equality Officer, Bernadette Treanor, reviews three equality cases. The first focuses on a case involving maternity protection and the responsibility of an employer to identify appropriate duties.
MPD162 – HSE v Rabbitte
Issues: Maternity protection, entitlement to return to job when maternity leave ends, responsibility to identify appropriate duties
This Labour Court determination is made in accordance with the maternity protection provisions but is of interest because a considerable number of equality cases relation to maternity issues also include reference to the role the employee returns to following maternity leave. In this case, the employee was working as a grade III but was told by her manager that she was actually working as a grade IV and that she, the manager, would seek to have the employee’s position regarded whenever embargos were lifted. Due to the nature of the work, it was reassigned to another location while the complainant was on maternity leave. Prior to her return the complainant sought clarity as to what role she would return to and she was keen to ensure her entitlement to an upgrade would be protected. Backlog work was assigned to her but this was likely to last only six to seven weeks. Having unsuccessfully sought information as to what role she would hold after the backlog was cleared the complainant was unable to cope with the lack of information and certainty the complainant commenced this claim.
The respondent argued that she had returned on the same contract and the same terms and conditions of employment, that it had gone to considerable lengths to identify alternative suitable work but the complainant had failed to submit a definitive list of duties she was prepared to undertake which would protect her entitlement to be upgraded.
The Court found that the complainant was employed on grade IV work before her maternity leave and was entitled to return to that job after her maternity leave ended. The Court accepted the employer’s willingness to accommodate the complainant but found it had unintentionally failed to assign her appropriate work. “Assigning her appropriate work is the responsibility of the employer. It is not her responsibility to identify duties that she could undertake.”
Why is this case of interest?
Employers, no matter how willing to accommodate employees returning from protected leave, are required to assign appropriate work and it is not the responsibility of the employee to identify that work. Presumably, the returning employee must accept the assigned work as equivalent in all respects to what she was doing prior to the commencement of the leave.