EMPLOYMENT EQUALITY ACTS 1998-2011
Decision DEC - E2012 - 095
PARTIES
A Worker (represented by J.A. Shaw &Co., Solicitors)
And
A Health Services Provider
File References: EE/2009/301
Date of Issue: 23rd July 2012
1. Claim
1.1. The cases concern claims by a worker that a health services provider discriminated against her on the ground of gender, family status and disability contrary to Sections 6(2)(a), (c) and (g) of the Employment Equality Acts 1998 to 2008, in terms of a refusal to let her revert to full-time work after she had worked part-time for a number of years to care for her disabled child. Her complaint on the ground of disability is therefore one of discrimination by association pursuant to the provisions of S. 6(1)(b) of the Acts.
1.2. The complainant referred her complaint under the Employment Equality Acts 1998 to 2008 to the Director of the Equality Tribunal on 12 May 2009. A submission was received from the complainant on 15 June 2010. On 22 December 2011, in accordance with his powers under S. 75 of the Acts, the Director delegated the cases to me, Stephen Bonnlander, 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. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to hold a joint hearing of the case on 26 January 2012. This hearing was adjourned to allow the complainant to clarify her complaint. An additional submission was received from her on 24 February 2012, and a response submission was received from the respondent on 4 April 2012. The hearing of the case resumed on 4 July 2012. Additional evidence was requested from the respondent at the hearing of the complaint and received on 13 July 2012.
2. Summary of the Complainant's Written Submission
2.1. The complainant is a clinical nurse specialist in the employment of the respondent, and the mother of a disabled child for whom she has caring responsibilities. She applied to the respondent to be facilitated with reduced working hours to be able to meet these responsibilities. Her request was granted. It was the understanding of the complainant that this arrangement would last for three years, from 1 April 2005 to 31 March 2008. A replacement nurse was hired by the respondent to cover the shortfall in the working hours of the complainants. It is the complainants' understanding that this staff member was on a fixed-term contract with the respondent to coincide with their period of reduced working hours. However, when the complainants sought to return to full-time work, this was refused. The complainants were advised that the nurse who was employed on a fixed-term contract would remain in place, and that budget constraints prevented the respondent from increasing their working hours back to full-time.
2.2. The complainant submits that other staff members were facilitated in a return to full-time work after working part-time or taking extended breaks. The allege that as the original arrangement for reduced hours related directly to their gender, their family status, and by association, to the disability of their children, the respondent's refusal to grant them return to full-time work constitutes discriminatory treatment on those grounds.
3. Summary of the Respondent's Written Submission
3.1. The respondent denies discriminating against the complainant on any of the above grounds. According to the respondent, it was not aware of the existence of the complainant's disabled child when it granted her request to reduce her working hours from 39 to 24 in the summer of 2004. A new clinical nurse was employed on a contract of 30 hours per week, to cover for the complainant and a colleague and to meet the service need in the region. This staff member was ultimately awarded a contract of indefinite duration pursuant to the requirements of the Protection of Employees (Fixed-Term Workers) Act 2003.
3.2. In January 2006, the service requirement increased and the complainant was asked to return to work on a wholetime basis. The complainant refused to do so. It was on the basis of this refusal that the then temporary nurse referred to above was offered a further nine hours work (increase from 30 to 39 hours). She agreed to take on the additional hours and accordingly when her contract was determined to be one of indefinite duration- it was the 39 hour rather than 30 hour contract which was the operative contract.
3.3. In December 2008, the complainant requested to return to full time hours (i.e. increase from 24 to 39 hours per week).
3.4. Prior to this request in early 2007 the respondent implemented a Employment Control Framework for the year which targeted a staff reduction of 1,000 by the end of 2007. In 2008 a moratorium on recruitment and promotions in the public sector in the public sector was put in place. The Respondent was financially constrained and a decision was made that any requests from "reduced hours" employees to return to wholetime positions could not be facilitated while the moratorium was in place unless there was a significant service requirement.
3.5. It was on this basis that the Respondent refused the complainant's request to return to wholetime hours. It asserts that this decision was entirely consistent with the Agreement on Flexible Working in the Health Service and the direction given by the Respondent to all Departments following the introduction of the Employment Control Framework/moratorium.
3.6. According to the respondent, all of the employees within the team who had requested to return to work on a wholetime basis since 2008, including the complainant's line manager, and the office manager, have not been facilitated. All of these staff members remain on reduced hours.
3.7. The respondent further states that it attempted to negotiate a solution by splitting the available hours evenly between the complainant, her colleague on reduced hours and the newly hired colleague on full-time hours. This nurse's consent was obtained, and all three worked 28.8 hours per week, with a possibility to work more hours should the service need arise.
3.8. Under the circumstances, the respondent asserts that it has always treated the complainant fairly and equitably, and denies that any of her treatment was in any way related to her gender, family status or her child's disability.
4. Conclusions of the Equality Officer
4.1. The issue for decision in this case is whether the complainant was discriminated against within the meaning of the Acts.
4.2. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to S. 85A of the Acts. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of "sufficient significance" before a prima facie case is established and the burden of proof shifts to the respondent.
4.3. At the hearing of the complaint, the complainant and her representative only presented arguments in relation to discrimination on the ground of disability by association. No arguments were put forward with regard to the complainant's gender or family status.
4.4. The complainant stated in her evidence that she started in the respondent's employment in 1981, and completed her training in 1985. She felt always well treated by her employer, until the employer was taken over by a nationwide organisation. She stated that she then felt she was "not heard".
4.5. One of the complainant's children developed a disability as a result of rare complications from chicken pox. The child developed incessant seizures and over the years, was treated with over 40 anti-convulsant medications. The child has recently undergone surgery which has stabilised its condition.
4.6. In order to meet her caring responsibilities, the complainant applied to the respondent for reduced working hours for the duration of three years, and was facilitated with this arrangement from 1 October 2004. A colleague of the complainant had applied for reduced working hours for the same reason, that is, she too was the mother of a disabled child. A copy of the complainant's application form was provided to the Tribunal, and does not make any reference to her disabled child as the reason for her application. In fact, the form does not ask for reasons to be provided. A replacement staff member for the two workers commenced a temporary fixed-term contract on 1 April 2005, to run until 31 March 2008.
4.7. When her line manager advised her of the upcoming recruitment embargo, the complainant applied to resume full-time work. She recalls applying in October 2008 and signing an application form to that effect on 1 January 2009. However, at Christmas 2008, she was advised by email that she would not be facilitated with full-time hours. This email was read out at the hearing and again does not contain any reference to the complainant's disabled child.
4.8. According to the complainant, an arrangement was eventually agreed through her union, whereby she, her colleague, and the nurse who replaced them and who eventually was retained on a full-time contract would split the work between them so that everyone would work 30 hours per week. That was then reduced to 28.8 hours, as the standard full-time work week had been reduced from 39 hours to 37.5 hours. According to the complainant, she felt that this arrangement of offering her 28.8 hours instead of 30 hours was very unfair, she was not satisfied with it, and it was the main reason for bringing her complaint.
4.9. The complainant also stated that of the nursing staff on reduced working hours, nobody was allowed back to full working hours, and only one social worker was so facilitated.
4.10. The complainant confirmed that in 2006, she received an offer of increased hours, but stated that she was not ready to go back to full-time work at that time. She also stated that she was not aware of the Agreement of Flexible Working in the Health Service, which states in paragraph 11: "Where individuals currently employed on a wholetime basis are granted reduced working hours they will retain a right to return to wholetime working subject to the availability of such hours in their grade with their employer." [emphasis added].
4.11. The argument of the complainant's representative was that the replacement nurse's fixed term contract should have been ended in order to facilitate both the complainant and her colleague with return to full-time work. Against that, the respondent argued that the complainant did not apply in October 2007 to return to full-time work, and that by the time she did in May 2008, the replacement nurse was in her fourth year of employment with the respondent, and arrangements were being made to make her employment permanent. The respondent stated that this was its practice, but that no written policy in this regard existed.
4.12. I requested copies of the this nurse's contracts from the respondent, and they show that this staff member only received a permanent contract in May 2011. A number of very short term contracts exist for the time between May 2008 and May 2011. The respondent accepts that there are gaps in the paperwork. However, little turns on this as regards the evidentiary requirements on the complainant to establish a prima facie case.
4.13. The issue of the evidentiary standards for a complaint of discrimination on the ground of disability by association has been considered by the Labour Court in A Worker v. Two Respondents [EDA 1129]. In that case, the worker claimed to have been discriminated against by the respondents because he was a carer for his disabled wife, whereas the respondents argued that the treatment he received arose from disciplinary issues. Citing Elias LJ in JP Morgan Europe Ltd v Chweidan [2011] IRLR 673, that
Disability discrimination occurs where a person is treated less favourably than a similarly placed non-disabled person on grounds of disability. This means that a reason for the less favourable treatment - not necessarily the only reason but one that is significant in the sense of more than trivial - must be the claimant's disability"
the Court went on to state that
These definitions apply equally in cases where the Complainant is him or herself disabled or where it is by association. In order to make out a case of direct discrimination a Complainant must compare his or her treatment to that of a comparator, actual or hypothetical, who does not have the characteristic relied upon.
4.14. In the complainant's case, I am satisfied that a number of comparators do exist, that is, all nurses in her work unit, none of whom was facilitated with a return to full-time work from reduced hours, regardless of their personal circumstances.
4.15. Furthermore, I would like to note that the complainant did not adduce any evidence that her disabled child was the reason she was not facilitated with a return to full-time work. Under the circumstances, I find that the complainant has not established a prima facie case that the respondent discriminated against her on the grounds of gender, family status or disability by association, and that her complaint must therefore fail.
5. Decision
5.1. In coming to my decision, I have considered all oral and written evidence presented to me by the parties.
5.2. Based on all of the foregoing, I find, pursuant to S. 79(6) of the Acts, that the respondent did not discriminate against the complainant on the grounds of gender, family status or disability, in her terms and conditions of employment contrary to S. 8(1) of the Acts.
______________________
Stephen Bonnlander
Equality Officer
23 July 2012