ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00010108
Parties:
| Complainant | Respondent |
Anonymised Parties | A Household Assistant | A Hospital |
Complaints:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00013128-001 | 14/08/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00013128-002 | 14/08/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005 | CA-00013128-003 | 14/08/2017 |
Date of Adjudication Hearing: 05/02/2018
Workplace Relations Commission Adjudication Officer: Catherine Byrne
Procedure:
In accordance with Section 41 of the Workplace Relations Act 2015 and Section 79 of the Employment Equality Acts, 1998 - 2015, these complaints were assigned to me by the Director General. I conducted a hearing on February 5th, 2018 and gave the parties an opportunity to be heard by me and to present evidence relevant to the complaints.
The complainant was represented by Mr Shane Manus Quinn BL, instructed by Mr Niall O’Connor, Solicitor. The respondent was represented by Mr Tom Mallon BL, instructed by Aidan Kirrane of Pembroke Solicitors, assisted by Ms Niamh McMahon. The Industrial Relations Officer and the Assistant Director of Human Resources also attended for the respondent, as did the Household Manager, who is the manager of the department where the complainant works.
Background:
The complainant was a member of the household staff in a hospital and she contends that her employer discriminated against her on the ground of gender, during her pregnancy and following her return from maternity leave. She alleges that, because of her poor attendance and lateness, she was placed on probation in April 2016, and that this continued following her return from maternity leave on June 6th, 2017. A second complaint under the Employment Equality Act alleges that the respondent discriminated against the complainant by not permitting her to increase her working hours from 34 hours per fortnight to 40 hours per fortnight. Finally, the complainant alleges that, on July 15th, 2017, when she was not given a day off that she requested, this constituted penalisation. She claims that this occurred because she raised a grievance against two colleagues. The complainant resigned on August 8th, 2017 and her last day of employment was August 10th. |
CA-00013128-001: Section 77 of the Employment Equality Act 1998
Summary of Complainant’s Case:
Complaint of Discrimination The complainant was pregnant from March 2016, with her baby due on November 12th. In her complaint form, she said that she was summoned to a meeting on April 8th 2016, although correspondence submitted by the respondent shows that the meeting took place on April 12th. A letter submitted at the hearing shows that the purpose of the meeting was to “discuss your level of attendance.” At the meeting, the complainant was accompanied by her SIPTU representative. In her evidence, she said she told the managers who called the meeting that she was pregnant and sick and dehydrated as a result. Since a previous review in November 2015, she had been absent from work four times and was late on a number of occasions. Following the meeting, she said that she was permitted to start work a half an hour later than normal at 8.00am instead of 7.30am, but that she was placed on probation for the three months leading up to her maternity leave and for three months afterwards. She complains that this action on the part of her employer discriminated against her on the basis of her pregnancy. Evidence of the Complainant In response to questioning by Mr Mallon for the respondent, the complainant agreed that at the meeting on April 12th, she didn’t say she was pregnant and the meeting had nothing to do with her pregnancy. However, she said that, when she was cleaning a room in March 2016, she told the household manager that she was pregnant. She agreed that she had “got it wrong” when she referred to being placed on probation after the meeting. At the hearing, the complainant agreed that she got mixed up with regard to the meeting in April and another meeting August 2016, and that she never mentioned her pregnancy at the April meeting. Responding to all the evidence in respect of this complaint, Mr Quinn, for the complainant said that while she may not have been technically on probation, the complainant believed that she was on probation and the effect was like a “sword of Damocles” hanging over her. |
Summary of Respondent’s Case:
Response to the Complaint of Discrimination Correspondence submitted in evidence shows that the meeting referred to above took place on April 12th and not April 8th and its purpose was to discuss the complainant’s attendance. This followed from an informal absence management process that commenced in November 2015, when the complainant was counselled about her absence and lateness, as well as not adhering to the hospital’s dress code. The respondent’s submission notes that during the meeting, the complainant said that she was feeling stressed about the ongoing difficult working relationships in the household and catering team. This had been the subject of an intervention by a mediator in February 2016. The complainant was advised to get support from the employee assistance service. Following the meeting, a letter was issued to the complainant to the effect that no further corrective action would be taken with regard to her absence and lateness, and that the situation would be reviewed again in three months. The respondent’s position is that it wasn’t until a meeting on August 18th, 2016 that the complainant said that her pregnancy was causing her to be late for work. This meeting was held as a result of five absences from work and 12 incidents of lateness. The complainant said that she was suffering from nosebleeds and pregnancy-related sickness. This problem had not been raised at the complainant’s pregnancy risk assessment meeting, when she had stated that she was “fine.” The managers at the meeting offered the complainant a later start time by 30 minutes until she commenced her maternity leave. She was also advised to inform her manager if she needed a rest during the day. A letter issued on August 18th confirms all of this and also that no corrective action would be taken and that the complainant’s attendance would be reviewed again in three months.
As she would be on maternity leave from October 29th, 2016 the review period was to carry over for the first month after her return from maternity leave. Evidence of the Household Manager The household manager said that he was the assistant household manager when he got a phone call from the complainant’s mother on April 13th in which she said that her daughter was “coming home crying every evening over what’s going on” in the unit she worked in. She also said that the complainant was pregnant. The witness said that he informed his manager about the contents of this phone call and this resulted in the meeting which took place on April 15th and the transfer of the complainant to a different campus. This location was also an easier commute from the complainant’s home. Evidence of the Industrial Relations Officer The Industrial Relations Officer (IRO) attended the meeting on April 12th, which was called to discuss the complainant’s absence and lateness. At the hearing, she said that the complainant did not mention that she was pregnant and that there was no discussion about pregnancy-related illness or pregnancy being the cause of the complainant’s lateness. This witness said that the meeting on April 15th was arranged because the complainant’s mother had phoned on the 13th, and said that her daughter was under stress from working in the unit she was assigned to at that time. The witness said that she and her colleague felt that it would be better if the complainant was transferred, and this was arranged. During two pregnancy risk assessments in May and August 2016, the IRO said that the complainant did not alert the assessor to the fact that she was feeling ill in the morning and that this was affecting her ability to come to work on time. The IRO also confirmed that there was no consideration of the complainant being returned to probation, and that no corrective action was taken in respect of her attendance or lateness, apart from a decision to review the situation again in three months. If the complainant had been put on probation, it is the view of the IRO that she would have reported this to her SIPTU representative who would have intervened on her behalf to have the situation resolved. However, as she was not on probation, no intervention was required. |
Findings and Conclusions:
The Burden of Proof The Equality Act 2004 inserts a new section, 85A, into the Employment Equality Acts 1998 – 2015. “85A – (1) Where in any proceedings, facts are established by or on behalf of a complainant, from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.”
The effect of this section in the law is to place the burden of proof in the first instance on a complainant, to establish facts, which, on an initial examination lead to a presumption that discrimination has occurred. Referred to as “prima facie” evidence, in the context of this adjudication hearing, the onus is on the complainant to show that, based on the primary facts, she has been treated less favourably than someone of a different gender, or someone who is not pregnant. The Primary Facts It is apparent that, at the meeting on April 12th, 2016 at which she was accompanied by her trade union representative, the complainant did not refer to her pregnancy or to an illness associated with pregnancy. It is evident that the complainant’s pregnancy was notified to the respondent’s assistant household manager on April 13th, the day after the meeting. The meeting on April 12th concluded with the managers saying that no corrective action would be taken and that the complainant’s attendance would be kept under review for three months. There is no basis for the complainant’s assertion that she was “put on probation.” Conclusion Having considered the evidence submitted at the hearing, I have concluded that the complainant has failed to establish facts which lead me to assume that she was discriminated against on the ground of her pregnancy. As a result, she has failed to meet the burden of proof required to establish her claim of discrimination in relation to her conditions of employment. |
Decision:
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 the Act.
I have concluded that the complainant had not established the primary facts which show that she was discriminated against on the ground of her gender and I have decided that this complaint is not upheld. |
CA-00013128-002: Section 77 of the Employment Equality Act 1998
Summary of Complainant’s Case:
Complaint of Discrimination The complainant availed of her right to additional maternity leave and parental leave and she was due back at work on July 29th, 2017. In May 2017, she made enquiries about coming back to work early and changing her hours from 34 hours per fortnight to 20 hours per week. She made this request in an undated letter in May 2017. She claims that in a letter from the household manager on May 30th, her request was refused and that no explanation for such a refusal was given. Evidence of the Complainant In her evidence, the complainant said that a colleague who requested an increase to 20 hours per week was granted this increase. Like her, this employee made the request on her return from maternity leave. On her behalf, Mr Quinn said that the failure of the respondent to give the complainant the extra hours she requested amounts to indirect discrimination, because a man would never be returning from maternity leave and requesting a change of hours. |
Summary of Respondent’s Case:
Response to the Complaint of Discrimination In accordance with her contract of employment, the complainant is required to work 34 hours per fortnight. Her letter of May 2017 reads as follows: “I am writing to request for 20 hours per week and can return to work as soon as possible if these hours are possible as I have no full-time minder for my baby yet.” On May 30th, the complainant’s manager responded saying that her contract provides for a 34-hour fortnight and that he was not in a position to change it. In respect of the request to return earlier than planned, the manager said: “If you wish to return earlier from your unpaid Maternity leave please indicate what date as we will have to update your training...” In their written submission to the hearing, the respondent referred to the Labour Court case of Rescon Limited v Scanlon, EDA 086 [February 29th, 2008]. Here, the Court said that there has to be a connection between gender and the less favourable treatment complained about. The Rescon case involved a selection process, but, in the respondent’s view, the principles are applicable to the case under consideration here. The Labour Court held as follows: “In this case, the Complainant has adduced no evidence to establish a nexus between his gender and the respondent’s failure to offer him the disputed post other than a woman was appointed and he was not. In the Court’s view, a mere difference in gender and a difference in treatment (in the sense that the Comparator was appointed and the Claimant was not) could never in itself provide a sufficient evidential burden upon which to raise a presumption of discrimination.” The respondent’s position is that if any member of the household staff had requested an increase their hours, the request would have been refused, unless there was a requirement for additional hours or unless the budget could accommodate the increase in labour costs. Evidence of the Household Manager The household manager said that when he got the complainant’s request for additional hours, he knew that this would need budgetary approval, which would not be forthcoming. He said that the complainant occasionally worked more than her contracted 34 hours per fortnight, and sometimes up to 40 hours. He said that there was no correlation between the complainant’s maternity leave and her request for additional hours. Evidence of the Industrial Relations Officer When she was asked about the possibility of increasing an employee’s contractual working hours, the Industrial Relations Officer (IRO) said that this was a lengthy process. She said that the hospital has very little flexibility with regard to increased working hours, although there may be a possibility that a person looking for extra hours could cover for a colleague on long-term sick leave. |
Findings and Conclusions:
The Burden of Proof In a mirror image of the previous complaint under the Employment Equality Act, the complainant has failed to set out the primary facts from which it may be presumed that discrimination has occurred. She had a contract of employment which required her to work for 34 hours per fortnight. Her letter to her manager asked for an increase to 40 hours. Her colleague who requested a temporary reduction in hours and who was permitted to do so, is female. The complainant has not presented any evidence that there is an employee of a different gender, whose request to change their working hours was granted. No man has been treated differently to the complainant, and no woman who was not pregnant has been treated differently. Having considered the primary facts of this complaint, I find that there is no basis for a presumption of discrimination on the ground of gender. |
Decision:
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 the Act.
I have concluded that the complainant had not established the primary facts which show that she was discriminated against on the ground of her gender, I have decided that this complaint is not upheld. |
CA-00013128-003: Section 28 of the Safety, Health and Welfare at Work Act 2005
Summary of Complainant’s Case:
Complaint of Penalisation On Saturday, July 8th, 2017 the complainant asked for a day off the following Saturday, July 15th. Having waited and reminded her supervisor on a couple of occasions about her request, on Thursday, July 13th, the supervisor suggested that she could swap with a colleague who worked on the campus from which the complainant had transferred. When the complainant rejected this suggestion, her supervisor advised her to swap with a colleague in the unit in which she was currently working. When the complainant enquired among her colleagues, she found that they were all working on Saturday, July 15th, so a swap wasn’t possible. The complainant’s supervisor said that she could not have the day off, despite the intervention of her trade union representative on her behalf. On Friday, July 14th, the assistant supervisor said that she could have a half day on Saturday, finishing work at 1.30pm. The complainant’s position is that by not permitting her to have the day off that she requested, she was penalised for raising a grievance. |
Summary of Respondent’s Case:
Response to the Complaint of Penalisation The background to this complaint is set in the context of a difficult relationship between two employees in the unit where the employee worked from the time she started in the hospital in 2014. This adversarial situation had an impact on the wider group of staff, numbering around 10, of which the complainant was one. From the evidence submitted at the hearing, it appears that the employees took sides with one or other of the protagonists. The complainant never made a complaint about this matter, although at the meeting on April 12th, 2016 she said that she was suffering from stress. The IRO said that the complainant explained that her absences were because she didn’t want to come to work in the environment that prevailed. She did not make a formal complaint and she did not submit a grievance about this matter. The respondent’s position is that the complainant never made a complaint under section 27 of the Safety, Health and Welfare at Work act 2005. They argue that no complaint was submitted, penalisation for making such a complaint cannot have occurred. |
Findings and Conclusions:
It is clear from the evidence of the respondent that there was pressure on staff on Saturday, July 15th, and I find that every reasonable effort was made to accommodate the complainant by allowing her to take a half day off. In the end, on Saturday, July 15th, the complainant called in sick and remained absent until July 18th. I have considered the evidence of the complainant at the hearing and I find that she did not raise a grievance or make a complaint about any matter while she was employed by the respondent. I have to conclude therefore, that no penalisation occurred. |
Decision:
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.
As I have concluded that the complainant did not make a complaint under the Safety, Health and Welfare at Work Act 2005, and that she never raised a grievance in respect of any matter related to her employment, I decide that her complaint of penalisation fails. |
Dated: 31st July 2018
Workplace Relations Commission Adjudication Officer: Catherine Byrne
Key Words:
Discrimination, penalisation |