ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00005793
Also in attendance was the Complainant’s partner.
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 77 of the Employment Equality Act 1998.
8th November 2017
Date of Adjudication Hearing: 30th May 2017
Workplace Relations Commission Adjudication Officer: Seán Reilly.
Location of Hearing: WRC Sligo.
In accordance with Section 41 of the Workplace Relations Act 2015, Section 79 of the Employment Equality Acts 1998 and following the referral of the complaint to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
The Complainant was submitting that she had been the subject of a discriminatory dismissal based on her gender and family status in breach of her rights under the Employment Equality Act 1998 and the Respondent was denying the complaint. The Complainant said that her monthly rate of pay was €2,005.00c.
Summary of Complainant’s Case:
The Complainant was submitting that she had been dismissed by the Respondent because of her maternity leave and that this represented a discriminatory dismissal on the grounds of her gender and family status and was in breach of the provisions of the Employment Equality Act 1998.
The Complainant said she has worked at the named Medical Practice since 2006. She said she had been employed by a number of doctors at the Practice and most recently by the Respondent. She said that she accepted that there was not a transfer of undertakings when she changed employment from each of the named doctors and she referred to a determination of the Employment Appeals Tribunal in that respect. (The Respondent agreed that the Transfer of Undertakings Regulations did not apply).
The Complainant said that the Respondent took over the Practice on 1st December 2015 and that she entered into a contract of employment with the Respondent dated the same date. She said that she informed the Respondent that she was commencing maternity leave on that same date, 1st December 2015 and she had arranged for a named person to cover her maternity leave. She said that she met the Respondent on that date, 1st December 2015, introduced him to the named person and that it was agreed that the named person would cover the Complainant’s maternity leave and she said the Respondent was pleased that she had arranged cover.
The Complainant said she informed the Respondent on a number of occasions that she would be taking 6 months maternity leave and she said she contacted him prior to her return (the evening before) to work and said he informed her he would speak with her on 1st June. The Complainant said that her right to return to work on the expiration of her maternity leave was not upheld.
The Complainant said that on her return to work on 1st June 206, her named replacement was still working in the Practice and the Respondent did not speak with her until the end of the working day. She said her discussion with the Respondent took place in front of her replacement. She said the Respondent asked her to increase her working hours, to which she agreed. But she said that he then went on to suggest that she job share her job with her replacement, but her replacement expressed dissatisfaction with that suggestion and her replacement suggested that the Complainant would receive family income support if she went on social welfare but her replacement would not. The Complainant said that the Respondent concluded by asking her if she had any income and she replied she did not. The Complainant said that the Respondent simply offered to put her on sick certs if it would help her to get an income from Social Welfare faster. The Complainant said that had she not been on maternity leave she would not be in this position.
The Complainant in her direct evidence said that on the first day the Respondent commenced in the Practice she was working (along with others) in the Practice. She agreed she was on Maternity Leave at that time and from that date and she confirmed that the forms for her maternity leave and maternity benefit were filled in and signed by the previous named doctor in the practice. She said that she spoke with the Respondent on that date, 1st December 2015, and she told him that she was commencing maternity leave from that day 1st December 2017, he asked her for how long and she replied for a period of 6 months. She said she told the Respondent that she (the Complainant) had arranged for a named person to cover her maternity leave and she introduced him to that person who was present at the Practice on the day. She said the Respondent was pleased that she had arranged cover. She said that later that same day, 1st December 2017, she was presented by the person replacing her as Secretary with a contract of employment with the Respondent listed as the Employer and herself as the Employee for the position of Practice Secretary with all the usual details. She said she signed it and handed it back, she said it did not have the Respondent’s signature on it at that stage and he obviously signed it later that same day as it is dated that day, 1/12/2015.
The Complainant said that that her replacement had bereavement in her family and she (the Complainant) covered for her for 2/3 days in February 2016 and no issue arose during that time.
The Complainant said that she sent a text to the Respondent on 31st May 2016, reminding him that she would be returning to work the following day. She accepted it may have been sent at 6.30pm. The Complainant said that she reported to the Practice for work on the following day, 1st June 2014. The Complainant confirmed that she had not notified the Respondent in writing of her intention to return to work as required by Section 28 of the Maternity Protection Act 1994. The Complainant said in the afternoon of the day she returned to work, 1st June 2015, the Respondent spoke to her in the presence of her replacement. She said the Respondent first asked her to increase her weekly working hours, which she said she agreed to. She said the Respondent then suggested she job-share with her replacement, but her replacement did not agree with this suggestion and said the Complainant would get Family Income Support (FIS) if she went on social welfare benefits but that the replacement herself would not. The Complainant said the Respondent then asked her whether she had any income and she replied she did not. She said the Respondent then concluded by offering her sick notes if it would help her to get an income from social welfare any sooner. The Complainant said that nothing further was said and she then left the premises.
The Complainant denied that the Respondent said anything further to her. She denied that she was asked by the Respondent to return to meet him the following day or any other day. She also denied that that any possibility of an alternative role was discussed with her whatsoever. She further denied that she had ever received the letter of 15th June 2016, submitted by the Respondent to the hearing and she also denied that the Practice Nurse or anyone from the Practice had ever discussed it with her
The Complainant submitted copies of documents received from the funders following a data request.
The cover letter of these documents dated 19th January 2017 states:
“I am attaching a copy of (the Complainant’s) contract as requested. I signed the necessary PSN/1 Form and returned it to the GP with a copy of (the Complainant’s) contract on 26/01/2016. Please see attached.
If you require any further information please do not hesitate to contact me.”
The next document is Form PSN/1 application for assistance from the Funder. It refers to the Respondent at the Practice it seeks payment for the Complainant for the period commencing 1/12/2015 and has what appears to be the Respondent’s signature.
The third document is the Contract of Employment. It names the Respondent as the Employer and the Complainant as the Employee. It list the normal features expected in a contract of employment. It is signed by the Complainant and what appears to be the Respondent’s signature and the date of 1/12/2105 is signed in what appears to be the same hand as the Employer’s signature.
On a second copy of the PSN/1 Form there are copies of post-it-notes attached filled in by the Funder. The first one is dated 24/2/16 states: “Spoke to (the Respondent) & explained that we need P60’s in order for this to pay out, he has informed that (the Complainant) is on Mat/Leave, so I explained he now needs PSN7 from the new person. The second one is 24/2/16 and states “need details (telephone number) spoke with (named person) will speak with doctor.” The third one is date 3/3/16 and states: “(the complainant) has not been employed, she is on Mat Leave. I have closed her on the system & explained that we need a PSN 7 Form for her and that only the nurse will pay out in Mar-16.”
The Complainant said these documents clearly show that the Respondent considered her to be an employee on maternity leave and is confirming this fact (including in writing) to the Funders.
The Complainant submitted that the fact that the Respondent accepted that the Complainant was going on maternity leave and that he by asking her when she would return to work for him along with the contract of employed dated and signed by him and her amounts to a contract of employment between them.
The Complainant said based on the documents submitted she could not have orchestrated the position viz-a-viz that she was an employee. She could not have orchestrated the post-it notes on the document. She said that the both the Respondent and his representative had said the signature on the documents looked very like his, however she would not even have seen his signature at the time the documents were submitted to the Funder, and accordingly she would not even know what it looked like, much less forged it (which she vehemently denied she had done). She further submitted that it would be impossible for her to have orchestrated or co-ordinated all the documents involved.
The Complainant said that it was clearly the case that she would not have been dismissed from the employment but for her pregnancy and in particular her maternity leave and that accordingly her dismissal was discriminatory and in breach of her rights under the Employment Equality Act 1998 and she sought a decision to that effect.
Summary of Respondent’s Case:
The Respondent said that he rejects the Complainant’s complaint of discriminatory dismissal under the Employment Equality Act 1998.
The Respondent submitted that he never employed the Complainant in any capacity and accordingly could not be responsible to any employment case or complaint she might have.
The Respondent said that he is a General Practitioner (GP) Doctor in a small rural practice and he was appointed to this position from 1st December 2015, following an interview process.
The Respondent said that the Practice is based in a named rural village with a small population. He said that in order to support the provision of GP services in such area they are provided with a Rural Practice Support Payment that provides an annual grant and extra practice supports.
The Respondent said that the previous named GMS contract holder GP in the practice was in the practice for a number of years. He resigned from his GMS contract as of July 2015. A named temporary or locum GP was appointed to the post from July 2015 to 30th November 2015.
The Respondent said that he continues to operate from the named Health Centre and he currently employs a Practice Secretary and a Practice Nurse.
The Respondent said that the Complainant was previously employed by another named GP at the Health Centre and they understand that she was made redundant upon his resignation from the Practice in July 2015.
The Respondent said they also understand that the Complainant was subsequently employed by another named GP on a series of fixed-term contracts terminating on 30th November 2015, in line with that GP’s role in the Practice. The Respondent said that prior to the end of her contract with the practice, the Complainant was on a period of maternity leave, but given the expiration of her fixed-term occurred during that period, her employment would have ceased at this point.
The Respondent said that given the lack of engagement or discussion with the Temporary Locum GP or with him he would contest any suggestion of a transfer of employment from the Temporary Locum GP to him.
The Respondent said they understand that the Complainant asserts that she was offered and signed a contract of employment with the Respondent as of 1st December, and that she was subsequently dismissed by the Respondent in May 2016.
The Respondent said he strongly disputes this version of events and he does not accept the authenticity of the document provided. Firstly, the Respondent does not recollect or have any record of completing or signing a contract of employment for the Complainant. Furthermore as the Complainant was already on maternity leave at that stage it was unlikely in the extreme that he would offer her employment until that maternity leave expired. The Respondent said this is counter to the documentation and records he has for the other Practice Staff.
The Respondent said a number of points refute the Complainant’s suggestion of employment. The Respondent said that he currently employs a Practice Nurse and a Practice Secretary, who are both employed on a full-time basis within the Practice, their employment commenced on 1st December 2015 and was subject to the completion of a 6 month probationary period. The Respondent said he receives certain supports in relation to the Practice. This includes a contribution to his Practice staff. Under the Scheme GP’s receive a maximum payment in line with their panel size. As a qualifying doctor under the Rural Support Framework, the Respondent is entitled to the maximum payment, this entitles him to claim for 40 hours of practice nursing support and 40 hours Practice secretarial support and there is not provision to claim for any further support as a single handed GP and the rates for these supports are set out by Statutory Instrument.
The Respondent said the payment is only allowable for employees who the GP are paying wages to. The provision of P35 and P60 documentation are required with the Application Form for these supports. The Respondent said that in this respect he received documentation from a named person for the Funder, in late January 2016, and he was surprised to receive these documents as the Complainant was not employed by him and he was not seeking practice subsidy on her behalf. The Respondent said he did not communicate with the Complainant about this as he believed it would have been inappropriate to so do. The Respondent subsequently informed the named person that the Complainant was not employed by the Practice and as far as he was aware she was not currently in employment.
The Respondent said that practice subsidies are paid one month in arrears and as outlined require evidence that the employee was paid by the Practice in order for the payment to be made. The Respondent applied for Practice subsidies in respect of the employment of the named Practice Nurse and Practice Secretary, this application was for the maximum entitlement which the Respondent was entitled to.
The Respondent said that he has no recollection of offering a contract of employment to the Complainant and the first he became aware of this was the correspondence from the named person in the Funder in January 2016. He did not take any further action at that time, giving concerns about raising an issue in a small community and especially given the Complainant resides immediately adjacent to the Practice premises.
The Respondent said that on 31st May 2016 at 18.32 the Complainant sent a text informing that she would be returning to work the following day (1st June), despite the fact the surgery closed at 17.30. The Respondent did not see the message until the following day. The Respondent said this was the first time he had heard directly from the Complainant regarding any alleged employment.
The Respondent said the Complainant presented at the Practice premises the following morning. The Respondent met with the Complainant on the afternoon of that day and informed her that there was currently no job available, but that he would certainly review the structure of the Practice with a view to offering her a position in the Practice. The Respondent said that there was no discussion of sickness benefit or any other claims. The Respondent asked the Complainant to return on 2nd June in order to discuss the possibility of a role, but she did not return on that day or further contact the Respondent to discuss any possible roles. Despite this the Respondent wrote to the Complainant and offered her a new role including administrative work as well as assisting the Practice Nurse in the management and running of the Practice Pharmacy.
The Respondent said that the newly created job carried the same hourly pay rate and significant responsibility giving the Complainant experience. The Respondent said that the Complainant did not respond to this offer.
The Respondent said that it should be noted that the probationary period for the employees taken on by him on 1st December 2015, and the Respondent offered those employees permanent job on 31st May 2016 and he said that this was prior to receiving communication from the Complainant.
The Respondent said that subsequently he received correspondence from the Complainant’s representative informing that they would be pursuing a claim for unfair dismissal if he did not confirm the grounds for the alleged dismissal of the Complainant. The Respondent said that he attempted to engage with the Complainant’s Representative without success.
The Respondent categorically rejects that he dismissed or discriminated against the Complainant in any way. He does not accept that he employed the Complainant and he disputes the authenticity of the documents provided by the Complainant. The Respondent said that as outlined that sequence of events would not align with him offering a contract of employment on 1st December, particularly at a point when she would not have been in a position to commence in the job. He said that in addition given the size of the Practice and the level of income within the Practice it would not have been feasible to employ two Practice secretaries and this is particularly the case in light of the small level of private practice in the area.
The Respondent gave direct evidence. He said that on the 1st December 2015, he took over the Practice and attended at it for the first time. He said this was the first time he met with the Complainant as she was in the Practice on that day. The Respondent said that he had no discussion with the Complainant on that day. In response to questions he said he did not ask her in what capacity she was present or what arrangements she may have had. He denied that a discussion took place as submitted by the Complainant. He said he did not question or wonder why she was not present on subsequent days, weeks and months.
The Respondent said that subsequently when the Receptionist was absent for personal reasons the Complainant did come and cover for her. He said that he told her ‘If you want to stay and help, okay’ but he said there was no role for her in the practice.
The Respondent said that at the beginning of May, the Receptionist sought a permanent contract of employment, following her probation period and he agreed to this. The Respondent said that he then sent in the contract to the named person in the Funder and the Respondent gave evidence of his discussion with that person.
The Respondent referred to the text sent by the Complainant on 31st May 2016. He said that due to the time the text was sent at it was not seen until the following day 1st June 2016. He said that on 1st June 2017 when the Complainant presented at the Practice premises he spoke to her on her own outside the building (as there was surgery and there was no private place inside the building). He said that he explained to her that that there was no job available at present, but he would examine and review the structures in the Practice with a view to offering her a job. He said that he then asked the Receptionist to join them and suggested she and the Complainant could share the job, but the Receptionist would not agree to this and as she already had a contract it could not proceed.
The Respondent said he then asked her to return the next day when he would have more time to consider the position, but she did not do so.
The Respondent submitted a letter dated 15th June 2016, to the Complainant from him (which the Complainant denied ever receiving). This letter stated the following:
“Following our discussion on June 1st, it was my understanding that you would revert to me within a few days with regard to facilitating your request to work here.
After careful consideration I would like to offer you a new position. The new position will entail assisting the practice nurse in the day to day running of the pharmacy as well as practice administrative duties.
I am confident you will find this new opportunity both challenging and rewarding.
You will be paid at the same hourly rate as your previous employment and we can discuss hours that will be convenient for you.
I am happy to discuss this further at a time that suits.
Looking forward to hearing from you.”
In relation to the contract of employment submitted by the Complainant, dated 1st December 2015 and appeared to be signed by the Complainant and him the Respondent submitted the following.
He agreed that the signature looked very much like his, but insisted that he did not knowingly sign a contract of employment for the Complainant. He said that there were a number of possible explanations for the existence of the document. He first implied and then said specifically that the Complainant could have created and sent the documents to the Funders herself. He also said that if the documents were presented to him along with other contracts he might have signed it along with others, especially if they were left open just at the signature page. However it was pointed out that the Complainant had stated that she had signed the contract first and without his signature on it at this stage and that this meant when/if it was presented to him for his signature it would have had her signature on it which is large, clear and visible on the document. The Respondent then said that he had not signed such a document in such circumstances.
In response to questions as to why, when on 19th January 2016, when he received documentation including the contract of employment, he did not contact the Complainant to explain or discuss the matter the Respondent said that he did not consider it appropriate to contact the Complainant, but he did contact the Funder to confirm that the Complainant was not an employee of his.
The Respondent said that in light of the foregoing they requested the Adjudicator to dismiss the complaint on the basis that the Complainant was never employed by him and that no dismissal took place.
The Respondent further said that without prejudice to the foregoing submissions that the Complainant was not and never was an employee of his, he would submit that the complaints should be rejected for the following reasons.
The Respondent said that the Complainant had failed to prove that any termination of employment was based on her gender, family status or on her maternity leave and he said that the Complainant had finished her maternity leave before the alleged dismissal took place and that accordingly she did enjoy the protection of the Maternity Protection Acts at that stage.
The Respondent said that the failure of the Complainant to respond to the job offer made to her by him by letter of 15th June 2016, meant that if there was a termination of employment it was of the Complainant’s making in her failure to respond to the job offer from him.
Findings and Conclusions:
I have carefully considered the evidence and the submissions made and I have concluded as follows.
Preliminary Issue: The Respondent submits that the Complainant was never an employee of his and that no contract of employment exists between them. I have carefully considered the evidence in that respect and I have concluded as follows.
I note that there is conflict between the parties in relation to the issue of whether or not the Complainant was ever an employee of the Respondent that cannot be reconciled and accordingly I have made my decision in that respect on the balance of probabilities.
I note the following: I was presented with documentation obtained by the Complainant from the Funders under data protection and I note the following in that respect.
I note that the Funder confirms in the cover letter with these documents : “I am attaching a copy of (the Complainant’s) contract as requested. I signed the necessary PSN/1 Form and returned it to the GP with a copy of (the Complainant’s) contract on 26/01/2016.” Plainly the Funder believed that these documents emanated from the Respondent and acted on that basis. I note the Respondent never contacted the Complainant to clarify the matter, which is very surprising considering she had actually signed the contract of employment and would have a reasonable belief based on that fact that she was an employee of the Respondent and it is to be expected that the Respondent would have immediately contacted her to inform his view that she was not an employee of his, but he did not do so.
I do not accept, as implied and then directly stated by the Respondent, that the Complainant could have filled in the contract herself and signed his name on it and sent it on to the Funder herself. I was presented with no credible evidence to support such a proposition. I do not accept that it is credible to suggest that the Complainant could have obtained a draft copy of the contract of employment and a blank copy of the Form PSN/1, filled in both forms and signed the Respondent’s named on both in the time involved. I note that they are stamped as received by the Funders on 25 Jan 2016.
Firstly I do not accept that it is credible to suggest that the Complainant could have orchestrated such a position and certainly not the documents involved and in the timescale involved.
I note that both the Respondent and his Representative confirm that the signature on the Contract of Employment looked very like his and I note that the date is clearly filled in by the same hand. I note that the documents were received on 25th January 2016 and this means that they were filled in and/or signed sometime between 1st December 2015 and 23rd January 2016. During that period the Complainant was not in attendance at the Practice and would have no means of obtaining the Respondent’s signature in order to copy a likeness of it on a form or contract.
Furthermore I find that ‘the post-it’ notes added by the Funder tends to support the Complainant’s submission that she was an employee of the Respondent on maternity leave, as does the subsequent actions or lack of actions by the Respondent.
In relation to the submission that Respondent might have unwittingly or unknowingly signed the contract I also cannot accept this proposition. Firstly I have some difficulty accepting that the Respondent or anyone else would sign a contract – the sentence immediately above the signatures states: “I understand and accept the terms and conditions set out in the contract” – and it is not a lengthy document only 1.25 pages long, without reading it. I further note the Respondent emphatically states he did and would not have signed such a document already signed by the Complainant. This would mean that he would have had to have signed the contract first and the Secretary would then, without any instruction from the Respondent, have sent or given it to the Complainant for her signature. This is unlikely in the extreme and it is entirely rejected by me.
I find and conclude that I reject the submissions of the Respondent on the preliminary issue.
Based on the forgoing I am satisfied and I find that the Respondent did in fact sign and date a contract of employment for the complaint on 1st December 2015 (and she also signed it on the same day) and that the Complainant was an employee of his from that date on maternity leave.
Substantitive Issue: I have carefully considered the evidence and the submissions made and I have concluded as follows.
The Complainant submits she was not permitted by the Respondent to return to work following her maternity leave and that this represented a discriminatory dismissal on the grounds of her gender and thus was in breach of her rights under the provisions of the Employment Equality Act 1998.
I note that Section 28(1) of the Maternity Protection Act 1994 states: “[Subject to section14B(11) and 16B(10), entitlement to return to work], in accordance with section 26 or to be offered suitable alternative work under section 27, shall be subject to an employee who has been absent from work while on protective leave in accordance with this Act having, not later than four weeks before the date on which she [or he] expects to return to work, notified in writing (or caused to be so notified) the employer, or, where the employee is aware of a change of ownership of the undertaking concerned, the successor, of her [or his] intention to return to work and of the date on which she [or he] expects to return to work.”
The Complainant confirmed that she did not confirm in writing in accordance with the above her intention to return to work, indeed she confirmed that the only notification she gave to the Respondent of her intention to return to work was a text sent after the office of the Respondent had closed on the day before her return to work only viewed on the day of her return.
This means in accordance with the above quoted section the Complainant had lost the protections of the Maternity Protections Acts and did not have an entitlement to return to work in all the circumstances. In the absence of a right to return to work, I must find and conclude that there was no breach of the Complainant’s under Section 11 of the Employment Equality Act 1998 in relation to her right to return to work and that thus no discriminatory dismissal occurred.
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Section 82 of that Act.
Based on the above findings and conclusions I issue the following decision.
In accordance with Section 79(6) of the Employment Equality Act I find, declare and decide that the complaint of discriminatory dismissal by reason of gender and family status is not well founded; it is rejected and is not upheld.
Workplace Relations Commission Adjudication Officer: Seán Reilly.
Key Words: Discriminatory Dismissal.